Was the BBC wrong to keep Huw Edwards employed despite knowing that he had been arrested on such serious charges? Looking at the timeline I think it’s difficult to criticise their approach. Most large public sector organisations would have done the same. 

When an employee is accused of a serious criminal offence – the sort of offence that, if they are guilty, would mean that they obviously could not continue in their role – then the employer has a choice. They can dismiss the employee at once or wait for justice to take its course and keep the employee suspended on full pay until they are either convicted or acquitted.

We often say that a person is innocent until proven guilty. But we don’t really behave as though that is true. Employers can certainly not take the risk of allowing employees to continue to work with allegations hanging over them that suggest that they pose a risk to either the business, its customers or members of the public. They often have to be kept away from the workplace – which usually means a suspension on full pay. Waiting for a verdict can therefore be a very expensive option. What is more, while a conviction would certainly give solid grounds for dismissal, an acquittal could leave the employer in a very difficult position. 

Imagine a teacher charged with offences that raise serious safeguarding issues. If a jury decides that they are not ‘sure’ that the individual is guilty, is it really an option to let the teacher return? Would parents feel comfortable with their children being cared for by a teacher on the basis that ‘nothing has been proved’? In those circumstances the employer might well dismiss. Not because the teacher is guilty but because there is a risk that they might be. This is a potentially fair reason for dismissal (employment lawyers describe it as an SOSR dismissal – a dismissal for ‘some other substantial reason) and depending on the circumstances might well be held to be fair. 

In fact, an employer might still be acting fairly if it dismisses before a trial even takes place. The argument would be that given the nature of the work it is not feasible for an employee who has been charged with such an offence to return. If there is enough evidence to sustain a charge, then an employer might reasonably conclude that there will always be a level of suspicion hanging over the employee and so it may as well proceed straight to dismissal rather than keep the employee on paid suspension for an extended period first. That is of course unfair on a wrongly accused employee – but an ‘unfair dismissal’ case is primarily concerned with the reasonableness of the employer’s decision to dismiss rather than with whether that decision causes injustice to the individual. For the purposes of an unfair dismissal claim, the needs of the employer might outweigh the unfairness to the employee. 

But there are other factors that the employer needs to consider. If its employees are vulnerable to false allegations – perhaps because of the kind of people they have to interact with or because they are in the public eye – then the employer will not want to be hasty. It sends a negative message to other employees if it appears that the employer will simply dismiss anyone against whom serious allegations are made. The employer will want to check – as best it can – the circumstances of the allegation and assure itself that there is some substance to it. 

This is often made more difficult if the employee is signed off sick and cannot be spoken to. That is likely at the very least to delay any decision about what to do. Of course the employer does not have to keep the job open indefinitely but sickness absence does make it harder to reach a decision.

There is also a wider duty of care. I have known of cases where employees facing serious charges have been identified as being at risk of suicide. In those circumstances the question of whether an Employment Tribunal would regard it as ‘fair’ to dismiss them rather fades into the background. These are sensitive matters that have to be handled carefully. 

One other factor to throw into the mix is the contract of employment. That will allow the employer to dismiss without notice if the employee is actually guilty of gross misconduct. But if the Tribunal (or court) accepts on the ‘balance of probabilities’ that they are innocent, then dismissal without notice would be a breach of contract. We would call that a ‘wrongful’ dismissal as opposed to an ‘unfair’ dismissal and I try my best not to get too irritated when journalists conflate the two. To avoid that the employer has to dismiss with notice, or at least with a suitable payment in lieu. In some cases even that is not possible. It is not unknown for very senior employees to obtain an injunction preventing dismissal before proper procedures have been followed. This all depends on the terms of the contract which for senior (or very high profile) individuals can be quite complex.

So taking all of these issues together, how well did the BBC do? 

As far as I can tell, allegations about Edwards surfaced in the summer of 2023 and he was taken off air in July. At that time the indication was that this was not being treated as a criminal matter by the police and Edwards himself started receiving medical care and may have been hospitalised. In those circumstances it is difficult to see what could be done. The allegations were being made from someone outside the organisation and related to alleged behaviour that took place outside work. The BBC would of course want to investigate matters but it would be difficult to do so quickly. Most employers would want to know more about the health of the employee before interviewing them about the allegations, even if that meant delaying matters. Realistically it is also harder to progress an investigation over the summer holiday period. 

It is not clear that those allegations would have been sufficient to lead to dismissal. The situation changes, however, when Edwards is arrested in November 2023 (but not charged) for offences which eventually led to his conviction. Assuming the BBC knew about the arrest and the broad nature of the allegations that were being made, they would want to decide what this meant for his future. With hindsight it might seem obvious that he would have to go, but it is reasonable to expect the BBC to take some time to assess what the situation was and how the case was likely to proceed. Was Edwards going to accept guilt or claim that he was completely innocent? Was he the victim of a tabloid smear campaign and did that mean that the BBC should stand by him? Was he available for interview and what was he prepared to say? Finally, what were the terms of his contract and what did it say about his notice period?

In the event he resigned in April – before he had been charged with any offences. We don’t know whether that was something he decided out of the blue, or whether it was the result of discussions with his employer. It was reported at the time, however, that he was not ‘paid off’. It looks as though he was paid through to April 2024 but not beyond that. If that is so then it is likely that he resigned without notice – or perhaps had given his notice to the BBC some weeks or months earlier. 

Some employers worry about accepting a resignation in these sort of circumstances. But they don’t really have the option of refusing if the employee gives notice. Employees are entitled to resign if they choose to do so. Where there is a safeguarding issue, the employer might need to carry on with an internal investigation until it reaches its conclusion and can decide whether or not it needs to make a referral to the Disclosure and Barring Service, but that is not a factor in Huw Edwards’ case. From a strictly legal point of view the employee choosing to resign is a good thing as it reduces the risk of any legal challenge and saves the employer from having to make a potentially unfair decision to dismiss.

I note that the BBC has apologised for the way in which it handled the initial allegations – which did not lead to criminal proceedings –  in May of last year. No doubt there are lessons to be learned and things they can improve. But on balance I think the BBC have reason to be pretty satisfied with how the employment question was resolved. A lot has been made of the amount that Edwards was paid while he was off air – but we have to remember that he was a highly paid individual and a few months pay will inevitably add up to a hefty sum. It is better to look at how long he was paid for and whether things could have been dealt with more quickly.  From that point of view we can see that a serious allegation made in November 2023 led to a resignation in April 2024 with no additional sum being paid in settlement. Given the high-profile nature of the case and seriousness of the allegations Edwards faced, I think that is a pretty good result for the BBC. Many employers I know will be envious of how quickly and (relatively) cheaply the issue was resolved.