Criminal allegations – what now?
6 August 2024
Criminal proceedings against former BBC newsreader, Huw Edwards, have recently featured prominently in the media, with many being highly critical of the fact that the BBC did not take steps to terminate his employment sooner. It was reported on 1 August 2024 that Culture Secretary Lisa Nandy discussed the BBC’s handling of the case with the BBC director general, Tim Davie.
Much of the criticism is due to the BBC’s decision to continue Edwards’ period of suspension, on a very high level of pay, for the period after he was arrested on suspicion of criminal offences (November 2023) until his resignation in April 2024, apparently on “medical advice”.
The impact of criminal allegations
The question of how to deal with employees who are subject to criminal investigations and/or court proceedings is far from straightforward, and the appropriate process for employers to follow will depend on various factors including both the nature of the allegations and the individual’s role and responsibilities. The employer needs to consider the impact of the charge or conviction on the employee’s suitability for the job and their future interactions with colleagues and customers (or service users), before making any decisions about their future employment. This is particularly tricky when there are potential safeguarding issues resulting from the criminal charges.
Achieving a fair dismissal
It’s important to note that being arrested will not in itself generally be enough to justify a dismissal. Where an employee has over two years of service, employers still need to ensure that they can rely on a fair reason and follow a fair procedure before deciding to terminate an individual’s employment, to avoid the risk of a successful unfair dismissal claim. This will include conducting their own investigation into the allegations (so far as is practicable), and considering whether disciplinary action is appropriate.
This can present significant practical difficulties, particularly if the employee is in custody or refuses to cooperate, but provided they are given the opportunity to participate in the investigation, an employer can progress their internal disciplinary process. Employers do not have to wait for the outcome of a prosecution before deciding whether to pursue disciplinary action, and in some circumstances, it may be desirable to dismiss the individual prior to a trial taking place. Note also that an employee does not need to be found guilty according to the criminal standard of ‘beyond all reasonable doubt’ in order for an employer to achieve a fair dismissal.
Suspension
It is not unusual for an employee to be suspended in these circumstances, when the criminal allegations are of a serious nature, and suspension should always be on full pay. It is also worth remembering that employers owe a duty of care to their employees, regardless of the nature of the allegations against them, and should be cautious in making any immediate or ‘knee jerk’ decisions when the employee is in a precarious state of mental health. For this reason, even if an employee has less than two years of service, dismissal may not appropriate until a fair process has been completed.
What about ‘frustration’?
One issue that often arises when considering criminal allegations is whether a guilty verdict will ‘frustrate’ the employment contract and thereby bring it to an immediate end without the need for the employer to dismiss. However, this will depend on all the surrounding circumstances of the case, and it is not generally advisable to rely on frustration to bring the individual’s employment to an end. Even imprisonment may not amount to a ‘frustrating’ event if it is only for a short period.
Employers who discover that an employee has been arrested, charged or convicted of a criminal offence are advised to seek urgent advice on the best strategy and process to follow before taking any action in respect of the individual.
-
Liz Stevens
-
Tom Sharpe
Services
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2024.