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The BBC’s conduct has been called into question in relation to its handling of the Huw Edwards case in light of him pleading guilty to child sex offences on 31 July 2024.

There is a particular focus on the period between July 2023 and April 2024, during which Edwards was suspended. Information has now surfaced that he continued to receive his full pay of £475,000 per annum during the suspension, as well as a pay rise of £40,000.

We now know that the BBC were made aware of Mr Edwards’ arrest during November 2023. While many people believe that he ought to have been dismissed at this point, there is no getting away from the fact that from an employment law perspective, the BBC had obligations towards him until his resignation in April this year.

So what should an employer do when one of their employees is facing, or potentially facing, criminal charges?

Investigation

Once an employer is made aware of allegations of potential criminal activity relating to its employee, they should carry out a proper investigation to try and obtain as much information as possible.

Right to suspend

In most cases of gross misconduct (and more serious cases of simple misconduct), employers should consider suspending an employee pending the results of their investigation.

Whilst suspension is by no means the default position, the ACAS code of Practice suggests suspension is acceptable if the employer reasonably believes it would be protecting any of the following:

• the investigation: for example, if they are concerned about someone tampering with evidence or influencing witnesses;
• the business: for example if there’s a genuine risk to customers, property or business interests;
• other staff; or
• the person under investigation.

During the suspension, the employer ought to carefully consider decisions surrounding pay. Unless there is a clear contractual right to do so, an employer is not entitled to suspend a salaried employee without pay or contractual benefits. Doing so would carry the risk of legal action by the employee, such as a claim of constructive unfair dismissal. In fact, there is still a risk of legal action by the employee even if the employment contract allows for reduced or no pay during suspension.  

Is it fair to dismiss an employee once you become aware they are facing serious criminal charges?

Potentially, but prior to any dismissal employers should consider the following factors:  

• nature of the conduct: are the allegations are sufficiently serious to warrant disciplinary action at work? Sometimes even cases that appear to be obvious misconduct affecting employment can lead to successful claims of unfair dismissal, such as in Walters v Asda Stores.
• the evidence: what evidence does the employer have and where has it come from? Is it from a reliable source?
• employee’s health: is there any information to suggest ill-health on the part of the employee? If so, does this change the decision-making process? Is the alleged misconduct potentially related to a condition which may constitute a disability under the Equality Act 2010?
• the procedure: employers must still follow a fair and reasonable procedure before dismissing an employee, even if they are accused of gross misconduct. What procedure is fair and reasonable will vary from case to case, but there are certain basics to follow, such as allowing employees to be accompanied by a colleague or Trade Union representative at a disciplinary hearing.
• confidentiality and the criminal justice process: will any action by an employer potentially prejudice the criminal justice process? We know in the case of Edwards that the police asked the BBC to keep the allegations against him confidential and this may also be relevant in other cases where a large amount of media attention may negatively impact the criminal investigation.
• Other considerations: what reputational damage will an employer sustain if they do or don’t dismiss? Is a failure to dismiss a failure to comply with obligations of health and safety towards other staff or service users?

When should an employer act against the employee?

There are no hard and fast rules to determine when to go ahead with disciplinary proceedings when there are allegations of criminal conduct by an employee. The most important thing is for the employer to conduct its own investigation into the issues and to properly consider the options available.

An employer may decide to postpone disciplinary action where the employee’s misconduct is also the subject of a criminal investigation or prosecution, and even in emotive cases employers ought to be careful not to act rashly. 

Connected obligations

Connected to the issue of whether Huw Edwards ought to have been dismissed is the issue of how the BBC handled evidence given to an internal inquiry into his conduct. Whistleblowers who gave evidence have criticised the way allegations against him were handled, with one individual suggesting Edwards’ behaviour had been “swept under the carpet”.

Such allegations may constitute whistleblowing, and if that is the case, employment legislation affords employees protection from being subjected to detriment (including dismissal) because they have made a protected disclosure.

Providing effective protection for whistleblowers is important to employers for several reasons, including:

• encouraging a speak-up culture;
• internal risk control;
• limiting reputational damage; and
• protecting staff morale.

If an employee is dismissed or is subjected to detriment on the ground that they have made a protected disclosure, this can expose the employer to potential Employment Tribunal claims for automatic unfair dismissal and/or whistleblowing detriment. Importantly, financial compensation in respect of such claims is uncapped and awards can be high.

It is in an employer’s best interests to deal with a whistleblowing disclosure when it is first raised by the employee or worker. This allows the employer to investigate promptly, make any further necessary enquiries, and determine any suitable action. Employers should:

• handle any whistleblowing complaint fairly and consistently;
• follow any process or policy the organisation has for whistleblowing; and
• where possible, keep the identity of the whistleblower confidential.

The Government’s Whistleblowing Code of Practice encourages clear and prompt communications between the whistleblower and the employer. This is vital so that whistleblowers understand how their disclosure has been dealt with. Failing to do so may result in the whistleblower approaching other individuals or external organisations to blow the whistle. It is advisable for an employer to have a policy which should help explain the benefits of making a disclosure, the process and how the disclosure will be dealt with.

If you need further guidance in relation to employee misconduct or whistleblowing, please speak to our specialist employment team.