BBC row raises wider questions says Yorkshire lawyer
AS the row over BBC presenters Russell Brand and Jonathan Ross intensifies a Yorkshire lawyer has warned that suspension is not a step to be taken lightly.
Despite Russell Brand quitting his show at Radio 2 over the row concerning veteran Fawlty Towers actor Andrew Sachs, Mr Ross remains suspended.
Emma Whiting, managing associate in the employment team at Addleshaw Goddard in Leeds says the whole affair raises wider issues .
Ms Whiting said: “The BBC appear to have taken the view that allowing the presenters to appear on air whilst an investigation is underway would inflame things and could risk the corporation’s reputation. Given the public’s response to date, the BBC may well be right.
“However, suspension is not a step that any employer should take lightly. It is a serious action which sends out a strong message to the outside world – which, in this case, includes the viewing public. Suspension should only really be used where the employee’s attendance at work represents some threat to the business. It should not be used as a knee jerk reaction just because allegations have been made or an investigation has been opened. A period of suspension should always be as short as possible – once the investigation has been completed, the employer needs to make a decision, either to bring the employee back or to take some other action, which usually involves considering the allegations again, as part of a disciplinary process.”
Ms Whiting argues that any period of suspension will be paid but it depends on the terms of the employee’s contract – and the BBC risks angering the public further by essentially paying Mr Ross to sit at home and do nothing.
The employer is also at risk.
She said: “Where an employer gets suspension badly wrong, the employee could walk out and claim constructive unfair dismissal and breach of contract. This is not easy, as suspension is a neutral act. However, it is open for an employee to claim that the suspension was unwarranted and so it has breached the essential term of trust and confidence. Damages for constructive unfair dismissal are capped at just over £72,000 which is unlikely to be of much interest to Ross or Brand. If they sued, they would be more likely to seek a payout for the remainder of their fixed term contracts, and those claims are likely to dwarf the £250,000 fine that Ofcom could impose.
“The key to doing it properly is to act swiftly and sensitively but without bias whilst complying with any contractual obligations (for example, in relation to pay). The prudent employer will also ensure that an impartial manager is waiting in the wings to investigate the matter quickly and thoroughly, to help determine whether or not there is a case for the employee to answer.”
