Allegations of misconduct under investigation by the BBC dominated the news recently. This situation does raise important issues about an individual’s right to privacy and in what situations is it right that conduct outside of work can be used against an individual in work.

Is your private life anyone else’s business?

What an individual does outside of work can result in suspension and even disciplinary action being taken against them at work depending on the facts. Whilst an individual may consider that what they do in their private life is no one else’s business, if it affects their work, or is considered to be capable of affecting their work it could lead to them losing their job. 

Work and social media.

Of course, the line between an individual’s work-life and personal-life has never been more blurred with the dominance of social media communication, and it is not uncommon for unwise social media outbursts or controversial views to land employees in hot water with their employers. However, in such situations, it is important that employers do not overemphasise the risk to their reputation but make a realistic assessment of the reputational damage caused and be able to evidence it.

Employers social media policies – are they clear enough?

An employer’s policies and procedures, and what they have conveyed to their staff in respect of the importance of image will be examined in such situations. If an employer has made clear in its various staff materials that protecting its image is extremely important, it will likely assist an employer in establishing that such conduct justifies disciplinary sanction or even dismissal.  

In cases involving alleged criminal conduct outside of work, there is no rule that someone ought to be dismissed, even if they have been convicted of an offence. An employer would need to consider what effect the conviction has on the employee’s suitability/ability to do the job.”

That said, the nature of the allegation or conviction may clearly conflict with the nature of an individual’s position, making it practically impossible to continue to employ an individual.

When is suspension appropriate?

In considering the recent publicised case of Huw Edwards, the police stated that no criminal offence has been committed. Of course, as Mr Edwards has not broken the law, questions will now inevitably be asked about whether the BBC were in fact right to suspend him or whether this was an ill-advised knee-jerk reaction.

An employer should have reasonable and proper cause for suspending an employee, and if they do not, then this could damage the trust and confidence between the employer and employee and lead to an individual resigning and claiming they have been constructively dismissed. An employee should only be suspended in exceptional circumstances and for as short a time as possible. Whilst an employee being suspended should not be treated as a presumption of guilt, the reality is it can lead to an employee feeling they are perceived as guilty and negatively affect their health and well-being.

Some Other Substantial Reason for Dismissal

As the police are no longer investigating the matter, if the BBC do look to dismiss then I believe they will seek to rely on some other substantial reason (“SOSR”) rather than conduct to justify such a decision. SOSR is a “catch-all” category used to justify a dismissal when none of the other four fair reasons apply (conduct, redundancy, capability or qualifications, and statutory restriction).  One thing for certain is that it will be a challenging process for all concerned and one that the BBC or any employer will be advised to treat very carefully, and also as far as it is possible, out of the public eye.

If you feel that you would benefit from further advice or help with your policies regarding any issues in this blog please contact the employment team at Gorvins on 0161 930 5151 or email or complete the online contact form.

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