Show notes
Our latest podcast by Rebecca Cairney and Ingrid McGhee will look at how the BBC handled the recent matter of Huw Edwards's criminal case and what employers can and should be doing in similar situations.
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Transcript
Rebecca: Hello, everybody, and welcome to the next edition of the employment insights podcast for 2024. My name is Rebecca Cairney, and I'm a Principal Associate in the employment pensions and immigration team based in Liverpool.
Rebecca: Today, I'm joined by my colleague Ingrid McGhee, who's a partner based in our Glasgow office.
Rebecca: Hello Ingrid and thank you very much for joining us today.
Ingrid: Hi Rebecca, thanks for having me.
Rebecca: No problem.
Rebecca: So, I understand that today we're going to be talking about the BBC and how they've handled the recent matter of Huw Edwards's criminal case, so what employers can and should be doing in similar situations.
Rebecca: Obviously, the BBC have come out and said that they were made aware in confidence in November 2023, that Huw Edwards had been arrested on suspicion of serious offenses and that he'd been released on bail. And I suppose the question on everybody's lips is, well, couldn't have they couldn't they have simply fired him then?
Ingrid: Yeah. I think given what we know now, you can see why that would be the natural conclusion to be drawn. But the answer is it wouldn't have been the right course of action to take at that moment in time without there being a risk of an unfair dismissal claim that the BBC would have had to defend.
Ingrid: So, the starting point, as I've said before, is that you would need to be aware of what the BBC were told, what details they had and when and, again, that would probably start any course of internal action at that moment in time.
Ingrid: We've obviously seen, in the press recently that they were aware that it was of a very serious nature and in my mind, that would suggest that perhaps an internal investigation would have or could have been commenced at that moment in time.
Rebecca: Yeah. Okay. And so what else should employers be thinking about, you know, if they're made aware of criminal charges or criminal convictions, what should employers be doing?
Ingrid: So, I think what needs to happen first is that you would need to if we were advising our clients in in this situation, and this crops up actually more frequently, than you perhaps think in the first instance. But, yeah, I think the first port of call would be to investigate. So you're made aware of something. It could be a criminal charge, it could be a conviction, and you should investigate that matter and try to find out as much as possible and as much of the detail as you can. Now that might be from the employee concerned or it might be from other members who have made you aware of this and what their particular source of information is. And, again, as a dutiful employee, you'd want to get to the bottom of what those details are in the first instance. And the next course of action, I suppose, is whether or not it would be appropriate to suspend the employee at that moment in time.
Ingrid: And as you know, back in the day, it was the knee jerk reaction of many in an employer when, a conduct or misconduct issue was brought to their attention. You would automatically suspend employees in those situations, but that's not the done thing anymore. So in order for you to decide whether or not you should be suspending, then again, you would have to take into consideration some of the factors that the ACAS code of practice itself refers to when there is a serious allegation of misconduct.
Ingrid: So firstly, you know, are there reasonable grounds to believe that the employee might seek to tamper with or destroy evidence or influence witnesses or perhaps swap an investigation into a disciplinary allegation.
Ingrid: And, again, another area is have a consideration around the working relationship. Have they already been severely broken down to the point that there is a genuine risk to other employees or the property or your customers or business interests if the employee was actually to remain in the workplace during the investigation.
Ingrid: And lastly, which would have been the relevant point here with the case of mister Edwards and the BBC was whether or not the employee is in fact subject to criminal proceedings, which again may affect how they can do their job. So, in this particular instance, you could understand why suspension of mister Edwards was the right course of action. And, again, for any businesses out there that are considering that, we would recommend that you pay heed to the ACAS code of practice in those circumstances.
Rebecca: Yeah. Absolutely. That makes sense. And so, how do employers then decide whether they should be taking kind of disciplinary action in in a case of kind of concurrent criminal proceedings ongoing?
Ingrid: So, ultimately, when an employee is charged with or convicted of a criminal offense, that's not necessarily reason enough for disciplinary action. So, what you should do as a business and as an employer is to also consider what effect the charge of conviction has on the employee's suitability to the to do the job, that they are actually employed for. And, again, what about any impact it has on the relationship they have with you as the employer and the relationship they have with their work colleagues and indeed your customers and clients.
Ingrid: So, when you are taking all those matters into consideration, you should think about whether or not the offense makes the employee unsuitable to continue in employment, would the offense cause you as the employer to genuinely lose trust and confidence in the employee? And, again, does the employee's behaviour risk bringing in sorry, bringing the employer's name into disrepute?
Ingrid: And, again, something that often crops up is whether there are any colleagues actually refusing to work with the employee in question.
Ingrid: So it's not a one size fits all. You have to do a proper analysis as to whether or not disciplinary action is the right course of action, as a next step. And, again, in order to avoid any finding of unfair dismissal, which is obviously a right and a claim that an employee subject to a dismissal can raise, you've got to carry out a reasonable process. So that obviously involves carrying out a thorough and fair investigation, conducting a disciplinary hearing, and, again, offering that employee the right of appeal. So each of these stages can actually be also complicated as we've seen in the mister Edwards case with things like criminal investigations, the employee's health and well-being, and their presence at work. So, again, we always say to our clients or businesses, just pick up the phone at that moment in time to understand what your obligations are as an employer and how do you carry out a fair and reasonable assessment in those particular circumstances.
Rebecca: Yeah. Okay. So a lot of different factors there to take into account as employers.
Is reputational risk, does that come into it? How would you address that during a disciplinary process?
Ingrid: I mean, you absolutely would, especially with, you know, businesses that have a very strong brand, have a very strong reputation to uphold, and all businesses and all employers have that. But I think it would be fair to say in that sorry. Fair to say that some are more known than others. So reputational risk, notwithstanding the size of your organization, is definitely something that most businesses focus on when they are dealing with conduct or issues relating to, convictions or charges of criminal offenses.
Ingrid: So there are important factors that businesses should consider before making any decision as to whether or not they should continue to employ a particular individual or indeed, dismiss them.
Ingrid: So, obviously, one of the areas that would need some focus and attention is to understand the nature of the offense in question.
Ingrid: Naturally, certain offenses, such as those involving, sexual violence, or violence in general, will attract greater negative publicity and, again, are potentially more likely to cause reputational risk, especially when that individual, that conduct is clearly associated with a particular business that you're in and the sector you're in and indeed your company name.
Ingrid: Another area is that there is a difference between reputational risk and potential reputational risk, and that's a fine balancing act that businesses have to carry out, when deciding what to do next as to whether or not to take disciplinary action or indeed dismiss an employee.
Ingrid: So with the rise and, ever high use of social media, again, if there's a clear link between the employee's conduct and your business that is being published alongside the details of their offense, then, again, that carries a greater reputational risk for you. And, again, that's something that should be factored into any decision making process. And, again, the profile of the parties and the case in particular, now this one here, obviously, with the BBC and mister Edwards, it's been extremely high profile given the individual concerned, the fact that it's the BBC, the fact that we have, due the fact that we have, due consideration as to how the BBC are funded, and indeed how mister Edwards was paid, and, again, the particular offense in question here.
Ingrid: So, again, many criminal cases do perhaps go under the radar and are unlikely to gain the traction in media. But, again, with some, that's just not the case. So, again, some are widely reported, and, there are certain employers that are brought into the limelight for all the wrong reasons. And, again, that's something that you would have to consider before making any decision.
Rebecca: Yeah. Absolutely. That makes sense. And, obviously, we know that, the criminal courts can be pretty backlogged, and it kind of depends on the nature of the of the alleged offence and, you know, the geographical location in the country as to where, the events has taken place. But do employers need to wait for the outcome of any criminal proceedings or trial before they take any action against the employee?
Ingrid: Well, to be honest, Rebecca, there there's no set rules when determining whether to press ahead with a disciplinary process and when there is a criminal trial pending. I think what businesses need to really consider and what is important is that you as an employer conduct your own investigation into the issues that affect your employment situation and to properly consider the options available.
Ingrid: And, again, businesses and employers are subject to the band of reasonable responses test. So, any decision that you make has got to be within the range of reasonable responses.
Ingrid: So, you can decide whether or not to postpone the disciplinary process pending the trial. But, again, you just have to demonstrate what your thought process has been and why you've taken a particular course of action. So, things that you should be thinking about when going through such an analysis are things like, is it going to be impractical for you to wait? If a criminal case is likely to take months or a year before you can actually make a decision as to what to do with this particular employee, are you really going to wait in that circumstance? But again, here, for example, in Scotland, sometimes we would work closely with the procurator fiscal and say when's this likely to take place, any indication of what's likely to happen so that we are allowing our clients to have, an informed decision as to what course of action should take, bearing in mind how long things might take to progress.
Ingrid: And, again, for some smaller businesses, they might have to also think, can the business or can the role, continue or can the role actively be undertaken in these particular circumstances? And, again, that has a bearing on the size of your business, the nature of your business, and, again, number of employees that you have. So, again, tribunals are aware that there are multitude of factors that businesses and employers need to take into consideration when, you know, weighing out what to do in this in these circumstances.
Ingrid: And, again, it's not one size fits all. So, the clear message that I would always say is just make sure that you are seen to and have a paper trail of what your thought process is and why you took a particular course of action. And, again, there's no rule preventing, an employee from dismissing an employee who has been charged with a criminal offense.
Ingrid: So, and, again, sometimes you come up with difficulties if an employee, for example, is advised by their solicitor not to engage in internal process or just chooses themselves not to engage. So, again, in those circumstances, I would always recommend to employers that they reach out to the employee to confirm what their course of action is going to be. Are you gonna crack on in writing? Do you still you offer them the ability to still respond to matters in writing or in any other fashion possible.
Ingrid: And, again, you gotta weigh up why you would, you know, press on if they weren't going to actively engage in the process in any event.
Rebecca: Yeah. Okay. That all makes sense.
Rebecca: So, a lot a lot for employers to have to think about when dealing with, cases of this nature, I suppose. From your perspective, Ingrid, what would be the key takeaways from a practical perspective?
Ingrid: I mean, there's a lot, to be honest, but I think taking the criminal conviction or the charges aside, I think your best place to start is to just be clear on what your process is regardless and what steps you're go you're going to take before any decision to dismiss is made. And I say that because you're better to follow a process and get to the right decision in the right way rather than being then a victim later on to an unfair dismissal claim on top of whatever might come your way. So, I think from a purely an employment perspective, we would always recommend that you follow a process. And, again, don't make assumptions as well. They might be they might be an arrest. There might be charges. But, again, you've got to investigate properly and thoroughly before making any decision.
Ingrid: And we always say this is the foundation of a lot of things as well. What do your contracts and any policy say around this? Now the higher up you go in the in the ladder in your organization, you might find that service agreements or director's agreements might have specific clauses or terms in relation to how the business or the employer would handle a situation where they were charged, they were arrested, or there was a criminal conviction, or they might be silent. So, again, just pay attention to what you already have in black and white in in your documents.
Ingrid: And, again, in terms of the documentation, we always make sure and always recommend that you're able to demonstrate that you followed a fair process.
Ingrid: You've got a thought process as to why you've decided to dismiss an employee. And again, you've acted consistently with your own policy and procedures.
Ingrid: And there was a recent case, which involved the Care Uk community partnerships and the claimant's name there was Defoco if anyone wants to read it, and it's a really good example of where an employee was actually charged with murder, but then later found innocent.
Ingrid: She raised a claim against her employee and was successful, in her claim for unfair dismissal. And the finding was due to the fact that the employer mainly relied on the employee's failure to report the circumstances surrounding her arrest and court appearances.
Ingrid: And what the employee had failed to evidence was that there was any reputational damage and that that wasn't actually discussed during the disciplinary hearing. But ultimately, that employee was only awarded a very small basic award, and she wasn't paid or awarded any compensatory award. That was because the, Care Community Partnership was able to demonstrate that had they considered the reputational damage and any alternative dismissal, then the employee still would have been dismissed in any event. And you and I know that that's the pulpy argument that we often use as solicitors. But, again, it was successfully implemented in that particular case.
Ingrid: So, again, it's just to safeguard against having to be brought through, an employment tribunal process in the first instance. If we get all the procedural aspects right, it does help minimize and mitigate that risk considerably.
Rebecca: Yeah. Absolutely.
Rebecca: Well, thank you so much, Ingrid. That was a really interesting and, really great discussion to have with you today.
Rebecca: So for everybody that's listening, please keep an ear out for our other employment law updates by subscribing to our podcast, which is employment law insights.
Rebeca: For now, if you do need any assistance with anything employment law related, then please either contact myself. My email is rebecca.Cairney@weightmans.com or Ingrid on Ingrid.McGhee@weightmans.com. And thanks again Ingrid for joining us and providing us with that summary.
Ingrid: Thanks so much, Rebecca. It's been a pleasure. Thanks. Thank you. And thank everybody for listening.
