The prominent former BBC News at 10 newsreader Huw Edwards pleaded guilty to the possession and creation of indecent images of children on 31st July, 2024 at Westminster Magistrates’ Court.
Since last summer, Edwards had been off-air at the BBC after tabloid claims were made that he had paid a young person for sexually explicit images (though the police found no criminal behaviour in relation to those claims).
It now appears that Edwards was arrested in November 2023 for indecent images of children following a police investigation into another individual and was subsequently released on bail pending a formal police investigation. It appears that the BBC became aware of Edwards’ arrest and its nature at the same time.
Questions have been raised as to whether it would have been reasonable of the BBC to have dismissed Edwards once they had become aware of his arrest as they continued to pay his salary until April 2024.
No doubt this will be the subject of an internal investigation for the BBC, however, it poses the question what can you do if you discover that your employee is facing criminal investigation?
Investigation
Once you become aware of a criminal investigation into an employee, you should first conduct your own fair and reasonable investigation. Depending on the seriousness of the allegations you may wish to consider suspending the employee pending the outcome of your investigation. Employers should be conscious that their own investigations do not prejudice the police investigation so often matters may become protracted.
Where possible, you should liaise with the police as part of the investigation and allow the employee to provide their own evidence to the investigation. At the conclusion of the investigation, you can then decide whether to discipline or suspend your employee. Making a decision to dismiss an employee before conducting an investigation would put you as the employer at risk of an unfair dismissal claim.
Discipline or suspension?
An employee being charged and/or convicted of a criminal offence does not necessarily amount to a disciplinary matter for which an employer can take action for.
To protect themselves against potential employment tribunal claims, employers should still conduct a fair disciplinary procedure; providing adequate opportunity for the affected employee to respond to any allegations.
If the criminal investigation into the employee were to conclude before the outcome of the disciplinary investigation, then the employer would be entitled to decide whether they wished to still go ahead with their own disciplinary procedure. Likewise, if, for example, the employee refused to cooperate with the investigation when requested, the employer would have to make a decision based on the evidence available.
Suspension would be an appropriate measure if there was a serious allegation made against the employee and it may be in the best interests of the business that the employee does not continue work until the conclusion of court proceedings.
This may be because the criminal proceedings could affect their ability to do their job or that there is a risk to other employees. There is also the risk of reputational damage to employers.
As well as the impact on the criminal proceedings, the employer must consider the impact the decision will have both on the affected employee’s mental health as well as a failure to make a decision may have on their other employees.
Some other substantial reason
It may be appropriate, in limited circumstances, for an employer to dismiss an employee for some other substantial reason (SOSR).
While SOSR is a catch-all category to rely upon, employers would need to demonstrate that the actions of the employee are serious enough to justify the termination of their employment.
The use of SOSR may be appropriate where there is enough evidence to support a charge and said charge raises serious safeguarding concerns i.e. if the employee were employed working with children or vulnerable adults.
Nevertheless, a SOSR dismissal could give rise to an unfair dismissal claim from the employee, but the employer should be able to establish that the unfairness of the dismissal is outweighed by their own needs as an employer.
As such there are a number of options that are available to an employer once they become aware of a criminal investigation into an employee as well as considerations that the employer should consider before making a decision. Given the complicated nature of such a matter it is wise to seek specialist legal advice to assist with any reputational risks as well as support the outcome of any disciplinary procedure.
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