new tribunal ruling sheds light on risks in the field of HR and employment law

BBC director general Tim Davie has been asked tough questions about his handling of the Huw Edwards investigation.

Among the points raised by Culture Minister Lisa Nandy were why Mr Edwards was not sacked when the BBC learned of his arrest and why he received a pay rise during this period.

A recent tribunal ruling has highlighted the risks of dismissing employees suspected of criminal activity.

Care assistant Jacqueline Difolco has filed an unfair dismissal claim against her employer, Care UK, after she was accused of murder in October 2022. The Employment Tribunal upheld her claim, stating that the company had not properly investigated whether the charges were reasonably likely to cause reputational damage to the organisation.

Rob McKellar, Legal Services Director at Peninsula, commented: “The Difolco case clearly illustrates how the law and the public interest are not always aligned. This could shed some light on the BBC’s decision to tread carefully by not firing Huw Edwards when they became aware of the police investigation into child pornography crimes.

“While the employee in Difolco was actually charged, albeit not convicted, in the Edwards case the case was still in the investigation phase until last week.

“If the BBC had decided to fire Huw Edwards when it was informed of his arrest in November, it may well have used taxpayers’ money to defend and possibly pay out an expensive legal case.

“However, that does not mean that employers cannot dismiss employees due to reputational damage or public interest. The law states that there are five reasonable reasons for dismissal, and misconduct is just one of them.

“Employers can also dismiss on the basis of ‘Another Essential Reason’ (SOSR). The legal test for deciding whether an SOSR dismissal is fair is whether the employer followed a fair process and acted reasonably in reaching the conclusion.

“When it comes to wages, the employment contract is crucial. If the contract states that when an employee is suspended, he or she will receive full wages, then he or she is entitled to wages in accordance with that contract. Wage increases that should have been granted during a suspension should also be honored unless there was a contractual clause stating otherwise.

“If there is some form of wage recovery agreement that stipulates that wages can be deducted or clawed back, then there may be an option to do that. The employer should ask the employee to return the money. If they do not do this, and there is an agreement stating that this is necessary, a claim can be filed in the civil court.

“Lisa Nandy has called on Huw Edwards to pay back his wages; It remains to be seen what course of action can be taken here.”