The BBC’s response to allegations made against an unnamed presenter raises important questions about the individual’s privacy and the organisation’s duty of care to colleagues.
Allegations that an unnamed BBC presenter paid a teenager thousands of pounds for sexually explicit photographs emerged last week, and speculation about who it might be has been rife.
This type of situation is a headache for any employer, let alone one whose employees are in the public eye.
According to the Sun, the male presenter started sending money in exchange for the photographs when the young person was 17 years old. This continued over a three-year period.
Although the young person involved in the case was over the age of consent when the payments started, under the Protection of Children Act 1978 it is a crime to take, make, share and possess indecent images of people under 18. The crime carries a maximum sentence of 10 years imprisonment.
Misconduct investigations
What should an investigation into employee misconduct involve?
The BBC suspended the presenter at the weekend. It said it first became aware of a complaint in May, and then of new allegations “of a different nature” on Thursday, for which it has been in contact with “external authorities”.
While lawyers and HR consultants say the BBC has acted appropriately by taking the presenter off air while the claims are investigated, its handling of the case raises questions about the person’s right to privacy and the BBC’s duty of care to the presenter, and other BBC presenters facing speculation of their involvement on social media.
By not naming him, the BBC could inadvertently be identifying him when he fails to appear on the next programme he is scheduled to appear on, although the BBC has stated he is not due on air soon.
Already presenters including Rylan Clark, Nicky Campbell and Gary Lineker have issued statements clarifying that they are not the subject of the investigation, while Jeremy Vine has reportedly passed some social media posts to a lawyer.
Campbell told listeners on his Radio 5 Live programme this morning: “It was a distressing weekend, I can’t deny it, for me and others falsely named. Today I’m having further communication with the police in terms of malicious communication and with lawyers in terms of defamation.”
Should the BBC name the presenter?
Despite the speculation, Tania Goodman, a partner and head of employment at law firm Collyer Bristow, said the BBC has done the right thing by not naming the presenter.
“The BBC has a duty of care to this employee, who could suffer severe and long-lasting consequences if their name becomes public.” – Jim Moore, Hamilton Nash
“There is inevitably a huge amount of media and public speculation on the identity of the accused but surely, they are entitled to remain anonymous, at the very least, until such time as the investigation concludes there is a case to answer. Otherwise, there is a significant risk that their reputation will be in tatters merely by virtue of being named, rather than being found culpable,” she said.
“In terms of privacy, let’s not forget that Sir Cliff Richard took the BBC to court following allegations that he sexually assaulted a man in 1985 and the corporation’s TV coverage of a police raid on his Berkshire property in 2014. He was not arrested or charged, and the case was subsequently dropped. Sir Cliff was awarded £2m towards his legal costs and the judge said that he had a reasonable expectation of privacy whilst being investigated and that there was no genuine public interest – rather gossip mongering.”
Last month ITV was forced to defend its duty of care to staff following the news that Phillip Schofield had an affair with a much younger colleague. It refuted claims that it failed to offer to pay for therapy for the younger man who, although unnamed, was the subject of intense media coverage.
Jim Moore, employee relations expert at HR consultants Hamilton Nash, said the BBC is in an impossible position when it comes to the decision to name the suspended presenter to protect the reputations of others.
“Firstly, the employee must be treated as innocent while the allegations are investigated, and it’s important to remember that no criminal charges have been brought or even appear to be imminent,” he said.
“Secondly, the BBC has a duty of care to this employee, who could suffer severe and long-lasting consequences if their name becomes public. The tragic case of Caroline Flack, who killed herself while under police investigation for assault, will be haunting many BBC executives, as will the Cliff Richard debacle when the BBC named him and sent a helicopter to gather footage of his home.
“Conversely, by not naming the presenter the BBC is leaving dozens of other male hosts facing a public guessing game.”
Is suspension the right course of action?
The BBC’s response may have also been dictated by the employment status of the presenter, who may be self-employed and will therefore not have the same contractual obligations as an employee.
Adam Grant, a partner at law firm Wedlake Bell said: “The individual in question is unlikely to be an employee and the allegations relate to matters that took place outside the workplace.
“[The BBC] would had to have weighed up the risks posed to colleagues by allowing the individual to work during the investigation versus the catastrophic and probably career-ending damage that openly naming and suspending will have on the individual.
“Commercially, suspension is also fully paid, so the BBC would most likely have been forced to pay the individual for all financial losses whilst they sat at home. The BBC would also have been acutely aware of the financial settlement it paid recently to a celebrity for the way it reported on a potential criminal investigation which was later dismissed.”
He said suspension is the usual route an employer should take if a disciplinary process could be required. However, case law and Acas guidance states that this should be used only when appropriate – for example, to protect witnesses, evidence, or the integrity of the business.
Grant said: “This is a salient lesson for employers. Suspension should not be a knee-jerk reaction and the decision should be taken after a balanced consideration of all facts. Disciplinary processes often run for several weeks and sometimes months, so the longer an individual is away from the business, the greater the speculation grows which in turn makes it extremely difficult for the accused to return to work if proven not guilty due to the potential stigma of the suspension.”
Reputational damage for the employer
Moore said the case is a reminder that employees’ behaviour outside work can have major consequences for an organisation’s reputation.
The longer an individual is away from the business, the greater the speculation grows which in turn makes it extremely difficult for the accused to return to work if proven not guilty due to the potential stigma of the suspension.” – Adam Grant, Wedlake Bell
“Most workers will have a clause in their employment contract for general disciplinary issues and gross misconduct, and they can cover a wide range of issues. Claiming that bad behaviour is a private matter and unrelated to work won’t hold much ground, especially if the actions were sufficiently serious and could reflect badly on the employer,” he said.
“In the days of social media, it’s easy for private issues to be magnified and amplified by going viral, and all it takes is a reference to an employer for the damage to be done.”
An employee’s behaviour also doesn’t have to be illegal for it to cause problems for an employer, according to Moore, who cited a case involving a teaching assistant who was dismissed from her job at a primary school when parents complained about her work modelling underwear.
Rebecca Sheriff, partner in the abuse claims team at Bolt Burdon Kemp, said the BBC needed to take the claims seriously to avoid further issues.
“A police investigation is needed and welcome. In the weeks to come, it will be important to determine the chronology of events – the question being: what did the BBC know, and when?” she said.
“The child’s family state that no one contacted them from the BBC after the initial complaint was made. This is not a good look for the BBC, and suggests that it deals with serious allegations of this nature by sweeping them under the carpet.”
A BBC spokesperson said: “The BBC takes any allegations seriously and we have robust internal processes in place to proactively deal with such allegations.
“This is a complex and fast-moving set of circumstances and the BBC is working as quickly as possible to establish the facts in order to properly inform appropriate next steps. It is important that these matters are handled fairly and with care.
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“We have been clear that if – at any point – new information comes to light or is provided to us, this will be acted upon appropriately and actively followed up. We expect to be in a position to provide a further update in the coming days as the process continues.”
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