Reclaiming salary from employees is no easy task, as the BBC is finding after the conviction of its former star presenter, says KATY SHARPE
Disgraced former BBC stalwart Huw Edwards may have avoided being sent straight to prison after admitting three counts of making indecent images of children, but he still faces demands to pay back part of his salary. It is a far from straightforward process as it is fraught with legal hurdles that provide a lesson for other employers facing a similar situation.
Controversy has arisen due to the way the BBC handled the situation from his arrest in November 2023 which prompted his suspension. However, he was still receiving full pay of around £475,000 (a £40,000 increase from the previous year) until April this year when he then resigned citing “medical advice”.
Edwards has now been convicted and received a six-month sentence, suspended for two years. He was also put on the sex offender register, meaning he must keep police informed of his whereabouts for the next seven years, and the court stipulated that he must complete a 40-day sex offender treatment programme as well as 25 rehabilitation sessions.
Why didn’t the BBC stop paying his salary?
In defending its decision to continue paying Edwards from his arrest to his subsequent resignation – the period for which they are now seeking repayment from him – the BBC explained that its policy is that suspended staff receive full pay.
The corporation said that if it was the case that Edwards had been charged in November, then he would have been dismissed, since this would point to the prosecutors having adequate evidence to anticipate conviction, which would merit dismissal. However, Edwards was not charged until after he resigned.
From a moral perspective, it is understandable that many people have expressed outrage at Edwards being paid in full when suspended, particularly due to the extremely serious nature of the crimes. However, from a legal standpoint the BBC’s actions can be justified.
There must be a fair reason for dismissal in order to avoid unfair dismissal claims. Alleged crime is not a fair reason, particularly where there has been no charge as there is a chance the person may be innocent. So, solely based on Huw Edwards arrest, the BBC couldn’t dismiss him without the risk of unfair dismissal claims.
The BBC has now asked Mr Edwards to return the salary he was paid during the period between his arrest and subsequent resignation. It is understood that he has not yet returned any money.
Can the BBC take legal action to recover the salary?
From an employment law perspective, the BBC will find it very difficult to achieve this aim. Edwards was still employed by the BBC and his employment had not been terminated, and there is no automatic right for an employer to attempt to recoup any of the payments made to him up until his resignation. As an employee, he was entitled to receive his contractual salary, even when suspended.
Employers can lawfully reclaim sums paid to employees in certain circumstances, but only if the contract of employment has a specific clause to this effect.
Within contracts of employment, repayment of training costs clauses are commonplace where it is specified that an employer can recover some or all of the costs associated with training courses if an employee leaves within a certain period of team.
Further, it is also common to have such a clause for situations of overpayments. However, it is not normal practice for these clauses to provide a clawback of salary in circumstances of subsequent criminal convictions, meaning that there will likely be no contractual employment recourse for the BBC.
Could the BBC take Edwards to court?
The BBC could, of course, decide to sue Edwards for damages.
To make this possible, though, there would need to be a “breach” by Mr Edwards. For example, a breach of a code of conduct or a breach of an “undertaking” signed by Mr Edwards. An undertaking is essentially a signed promise that one party will do or refrain from doing something, which is meant to be binding on the party giving the undertaking.
If Edwards signed an undertaking that he would not do anything that could bring the BBC into disrepute or damage its reputation, it would be able to pursue an action for damages for “loss” suffered. How that loss would be quantified is another question, but nobody could deny that the BBC has suffered serious damage to its reputation.
Little is known about the BBC’s contractual arrangements with its presenters, so it remains to be seen whether this option is plausible.
Many are clamouring for Edwards to “do the right thing”, morally. Time will tell.
Katy Sharpe is an employment solicitor at Aberdein Considine in Edinburgh
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