There has been a lot of interest in the Huw Edwards case in recent weeks, with some commentators questioning why the former news anchor a) wasn’t fired months ago; b) was given a £40K pay rise even after the allegations against him came to light and c) isn’t being forced to re-imburse his employer for salary payments made to him for the 5 months after he was formally arrested and charged, especially as he has now admitted to accessing indecent images.
There’s a bit to unpack here but as some have already pointed out, what might feel justified, based on the sheer strength of feeling aroused on such an emotive topic, isn’t as straightforward as it may seem and certainly giving in to a knee jerk response would not be in line with the corporation’s legal obligations, or best practice. There are a few issues worth looking at here, as these have a wider application for employers faced with this sort of dilemma.
The first point to note is even where an employee has been accused of a criminal offence, they ought to be seen as innocent until proven guilty. Jumping the gun by simply firing an employee simply because there’s “no smoke without fire” is very unlikely to satisfy an employment tribunal looking at an unfair dismissal claim or a court looking at a claim for damages based on wrongful dismissal (the latter being essentially a contractual claim for notice pay which in the Edwards case probably had a higher value than the statutory unfair dismissal compensation, given the level of salary). In the Edwards case, early indications suggested the accusations were not actually being treated as criminal by police although he was eventually charged in November 2023, several months after being signed off and presumably after the police had conducted theirown investigation.
The second general point worth noting is that as a rule, conduct that occurs outside work is not normally an employer’s business, unless it starts to impact on the employee’s ability to perform their role. Unlike say, the allegations of bullying against dance coaches on Strictly, the Edwards allegations were made by someone who had no connection to the BBC and did not relate to any obvious aspect of his professional role. However, that sort of distinction became less relevant for Edwards as the broader reputational issues came more to the fore.
Lawyers do recognise that there can be a bigger picture and some employers may take the view it is not worth the risk retaining an employee where even unproven accusations are serious enough to cause such significant reputational damage. In the Edwards scenario, his profile was high enough that this was a genuine problem. Once again though, things are seldom simple and to form a view, an employer ought first to carry out a reasonable level of investigation to stand any chance of defending legal claims arising from dismissal. In the case of Mr Edwards, this was almost impossible because he appeared to suffer a breakdown in his mental health meaning he was signed off as unfit to work and presumably also unfit to engage in any sort of investigation. Employers will often face this challenge and need to pivot from dealing with a conduct issue to managing a serious absence case, which can cause long delays.
The third general point to highlight is the question of paid suspension which was not an issue in this case but is something employers often need to grapple with. In recent years a lengthy suspension has itself become problematic as it can be seen as so prejudicial to an employee. Waiting for a criminal process to conclude can take months and it is usually unrealistic for an employer to delay their decision for so long. Better then to progress any internal investigation? Perhaps, and try to reach a decision if that is possible, but getting advice will be key as each case can raise its own unique issues and challenges.
So, returning to the original questions; in the circumstances of this case and certainly from a legal perspective the BBC would have acted unfairly had they dismissed Huw Edwards last summer, while he was signed off sick and before they could reach any sort of view on his ability to continue in his role by establishing the facts through proper investigation. The second question about entitlement to a pay rise while he was absent is closely related to this and while it may be tempting to reassess the morality of that decision with the benefit of hindsight, contractually it would have been unfair to withhold a pay rise that would have been given to others if they were absent due to ill health, at work or otherwise.
Finally, could the BBC claw back salary from an employee just because they have now admitted to misconduct and resigned? It’s hard to see any lawful basis for doing so. Mr Edwards was very well paid and that inevitably means his salary payments while signed off and pay rises will make the news. But their scale should not be allowed to cloud the fact that at the time they were paid, they were lawfully due.
