As the BBC faces criticism for what is seen by some as a lack of action over Huw Edwards’ continued employment leading up to his resignation in April this year, the question arises as to what employers should do when an employee is investigated, arrested or charged with a criminal offence. Can an employer still dismiss where the alleged events occurred wholly outside of work, and to what extent is potential ‘bad press’ relevant when taking decisions regarding continued employment?
Is dismissal an option?
Even where alleged conduct has occurred wholly outside work, it may still be possible for an employer to dismiss an employee in cases such as this. However, given the difficulties an employer may face in establishing a ‘reasonable belief’ that the alleged conduct did take place, it is often the case that the fair reason relied upon by employers will not be conduct, but rather ‘some other substantial reason’. This means that the employer does not need to demonstrate that it reasonably believed that the employee had committed the misconduct complained of, but rather that the employer had another reason to dismiss, and that that reason was substantial.
In many cases, this will mean dismissing due to the potential damage to reputation and/or the length of time before which it will not be reasonably practicable for the employee to return to work. In either case, there are a number of issues which the employer will need to carefully consider and investigate before making a decision.
Procedure
As employers will be aware, in order to fairly dismiss an employee, it is important to follow a fair procedure, and to have a fair reason for the dismissal. The first stage in any fair procedure will involve an investigation into the alleged conduct.
Investigation
Where the conduct complained of has occurred outside of work, there may be little investigation which the employer is able to practically carry out. In addition, where there is an ongoing police investigation, this becomes increasingly difficult, as the employee will want to avoid self-incrimination, and the police will likely not want to pass on any information in order to avoid prejudicing their investigations.
However, some of the things which employers will want to consider as part of their investigation include the following:
- To what extent is the conduct complained of relevant to the work which the employee carries out – for example, if there are any potential safeguarding issues or risks posed to vulnerable people, this will be more relevant to those in the care and education sectors.
- To what extent is the complaint already in the public eye? The more people who know about it, the greater the risk of reputational damage to the employer.
- If the information is not already in the public eye, how likely is it that this will occur?
- Is the person, the role, or the organisation high profile? This will invariably add to the risk of media interest, should any information come out.
- How have similar cases been dealt with in the past? Whilst every case is likely to be different, it can be helpful to review previous cases, if any, to ensure that there is consistency as far as possible.
- What is the status of the police investigation? Has the individual been arrested? Charged? Have they been remanded in custody or placed on bail? Is it police bail or bail awarded by the court pending trial?
- If the employee has been charged, when is the trial likely to take place? Can the employee work in the meantime? This is likely to include considerations of the role the employee does, the ability to safeguard against further damage and any potential risks to the employer/ other employees/ third parties if the employee returns to work.
- If the employee has been suspended in the meantime, how long has this been for? How long is this likely to continue? What are the costs consequences – both in terms of pay on suspension and costs to back-fill the position? What is the impact of this on the employer?
Disciplinary meeting
Having carried out a full investigation, the next stage is to carry out a disciplinary meeting. This will involve sending all relevant evidence and details of the relevant complaint to the employee. Where the reason for dismissal which is being considered is some other substantial reason, the employer must make clear what that substantial reason is, and be clear that one potential outcome of the meeting may be dismissal on those grounds.
As ever the employee will have the right to be accompanied to the meeting, and will have a right to appeal against the outcome of the meeting. Any dismissal on these grounds will also be on notice.
The difficulty in these cases often arises where the employee cannot attend a meeting, for example where they have been remanded in custody. What then can an employer do in those circumstances? The answer to that will very much depend on the facts of the particular case, including how long that is likely to remain the position, whether there is any ability for the employer to ‘meet’ with the employee in any other way – whether by telephone/ video call or visiting, the employee’s ability or willingness to send someone else to the meeting on their behalf or any other options which there may be in the particular case. However, the short answer is that there is normally a way in which the hearing can proceed, provided that the right steps are taken. It is always advisable to take advice to ensure that the right procedure is followed in any particular case.
BBC Investigation
So are the criticisms of the BBC fair? Should they have done more in the light of Huw Edwards’ confessions? The answer is – we don’t and probably never will know. As is to be expected, any investigation which was carried out will likely remain entirely confidential. We also don’t know exactly what the BBC knew about the allegations which had been made against Mr Edwards, and when, or what other considerations may have come into play. It is entirely possible that from an employment law point of view, they followed all the right steps and took all the right actions – and likely took significant legal advice whilst doing so – albeit it may appear to the public that they delayed in doing so.
As is ever the case, there will be more questions asked than answered, and speculation in the media about what should or should not have happened is unlikely to assist.
If any employer is facing a similar situation, the team at Tyr are always happy to assist.
