On Saturday, 22 February 2025, approximately 3 million federal workers in the United States received a centralised HR email entitled "What did you do last week?" inviting submissions on the top 5 things each had achieved in the previous week to justify their positions.
It transpired that this had been directed by the Head of the newly created Department of Government Efficiency (DOGE), Elon Musk.
The world's richest man later took to X to confirm that any worker's failure to respond by 24 February 2025 would be a resignation.
The public response to such action has been mixed, with many commentators suggesting the request amounts to harassment and demonstrates a hostile work culture. Supporters, however, argue that the correspondence reinforces the need for professional accountability in Government departments as part of routine management.
In any case, DOGE appears unrelenting, with further email being issued to staff on 28 February 2025 entitled "What did you do last week? Part II" outlining the same requirements.
Our Employment Lawyers explore this strategy's legal risks with examples of possible unintended consequences if such a strategy were adopted in the UK.
Implied resignation
The law in the UK requires that a resignation must be "clear and unambiguous," so employers must ensure that the employee intends to resign.
Avoiding ambiguity and having employees confirm their intentions in writing in these circumstances is always helpful.
The approach adopted by DOGE, misconceiving a failure to respond to an HR email as a resignation, would create a number of logistical and legal issues.
From a legal perspective, ending the employment relationship in such circumstances would likely amount to a dismissal, not a resignation, which in the UK public sector could potentially give rise to (several million) unfair dismissal claims.
Unfair dismissal
In the UK, employers must prove one of five potentially fair reasons to dismiss an employee: conduct, capability/performance, redundancy, illegality or some other substantial reason (SOSR).
Once a legitimate reason has been identified, employers must also adopt a fair and reasonable process, with this varying depending on the reason for dismissal.
In the UK, DOGE's strategy, seeking to dismiss staff whose performance is unsatisfactory or who are otherwise surplus to requirements, would require a formal performance improvement procedure or redundancy consultation process.
Failure to adopt appropriate procedures would likely amount to unfair dismissal.
DOGE has been clear about the need for significant cost-cutting measures within the US Government, with $1 Trillion of savings targeted by September 2025. It is anticipated that the majority of these savings will come from savings in labour costs.
In a UK context, such circumstances may give rise to a fair reason for dismissal, but employers must respect proper procedures to ensure fairness and avoid both legal claims and reputational damage.
Unfair constructive dismissal
Some notable commentary has suggested that DOGE's actions have been offensive to staff and undermined the trust and confidence federal workers have in the US Government.
In the UK, where an employee feels they have no choice but to resign because of something their employer has done, such as fundamentally breaching the terms and conditions of their employment, especially the implied term of mutual trust and confidence, they may be able to claim for 'unfair constructive dismissal'.
Employees may make a positive decision to resign in response to the hostile treatment and potentially have claims for unfair constructive dismissal.
Grievances
Short of formally resigning in response to treatment such as that meted out by DOGE, many staff may instead elect for less drastic action and choose to raise a grievance.
Given the significant public backlash, it is likely that the most appropriate way of resolving such an issue would be via a collective grievance procedure.
This process often involves trade union officials or other employee representative bodies who act on behalf of employees to reach a resolution via mediation and negotiation.
It can be a time- and resource-intensive process, and if a satisfactory solution is not found, employees may still retain their rights to resign and claim unfair constructive dismissal.
Discrimination
Finally, a strategy along the lines of DOGE's new policy could also give rise to discrimination claims.
In the UK, if an employer introduces a provision, criterion or practice (PCP) which applies to all staff equally but, nonetheless, disproportionately adversely affects a particular group of individuals with a protected characteristic under the Equality Act 2010, this will likely amount to indirect discrimination.
Should a group of staff with a particular protected characteristic, for example, part-time working women or those with certain disabilities, be subjected to a detriment as a result of a requirement to respond to the employer's requirements, this would be unlawful.
Again, such issues can give rise to claims by large numbers of employees acting collectively.
Comment
Ultimately, DOGE's policy is fraught with risk, and its controversy is unlikely to dissipate at any time soon.
Should employers wish to ensure the accountability of staff, best practice dictates that this should be done within an appropriate forum, such as in an appraisal or performance management process.
Contact Our Employment Solicitors
If you need advice on how to navigate employee management strategies and avoid potential legal pitfalls, particularly around issues like implied resignation, unfair dismissal, or discrimination claims, our expert employment law team is here to help.
Contact our Employment Lawyers for a consultation to ensure your workplace practices are legally sound and protect your organisation from unnecessary risks.
01619414000
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