BBC Director General Tim Davie has been on the receiving end of some tough questions regarding the way he handled the Huw Edwards investigation. Among the points raised by Culture Secretary Lisa Nandy were questions on why Mr Edwards was not sacked once the BBC became aware of his arrest and why he received a pay raise during this time.
Now, a recent tribunal ruling has highlighted the risks of dismissing employees suspected of criminal activity.
Care assistant Jacqueline Difolco brought a claim of unfair dismissal against her employer, Care UK, who fired her after she was charged with murder in October 2022. The Employment Tribunal has upheld that claim, stating that the company failed to properly investigate whether these charges could reasonably cause reputational damage to the organisation.
Rob McKellar, Legal Services Director at Peninsula, says “The Difolco case clearly demonstrates how the law and the public interest are not always aligned. This may shed some light on the BBC’s decision to act cautiously in not dismissing Huw Edwards when they became aware of the police investigation into child pornography offences.
“Whereas in Difolco the employee had actually been charged, albeit not convicted, in Edwards case the matter was still at the investigatory stage up until last week.
“Had the BBC decided to dismiss Huw Edwards when it was notified of his arrest in November, it may have found itself using taxpayers’ money to defend and potentially pay out on an expensive lawsuit.
“That does not however mean that employers cannot dismiss for reasons of reputational damage or public interest. The law says there are 5 fair reasons for dismissal and misconduct is only one of them.
“Employers can also dismiss on the grounds of ‘Some Other Substantial Reason’ (SOSR). The legal test for deciding whether an SOSR dismissal is a fair one is whether or not the employer followed a fair process and whether it acted reasonably in reaching the conclusion it did.
“When it comes to the topic of pay, the contract of employment is key here. If a contract states that when an employee is suspended it is on full pay, then they are entitled to be paid in line with that contract. Pay rises that would fall to be given in a time when an employee is suspended would also need to be honoured, unless there was a contractual clause not to.
“If there is any kind of wage recovery agreement that sets out pay can be deducted or claimed back then there may be an option to do so. The employer would need to ask the employee to return the money. If they fail to do so, and there is an agreement in place that states they would need to do so, then a claim could be pursued through the civil courts.
“Lisa Nandy has called for Huw Edwards to return his pay; it remains to be seen what course of action could be taken here.”
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