The emergence of the allegations that a BBC presenter paid a person under the age of 18 for explicit images, has thrown up an assortment of potentially risky legal issues that must be managed carefully. Whilst the age of consent is 16 years under the Protection of Children Act 1978, making, distributing, possessing or showing an indecent image of anyone under the age of 18 is a criminal offence regardless of whether it was with the consent of the young person. The BBC is a public corporation aligned with the Department for Culture, Media and Sport and the individuals that are employed to appear on news programmes or present programmes assume a persona that is both familiar and influential. The BBC has a duty to investigate any allegations made against an employee that could amount to abuse of power.
However, there are two laws that initially prevent an alleged perpetrator of sexual misconduct from being identified. The person against whom the serious allegations made has the legal right to two layers of privacy whilst the allegations are being investigated. The law concerning naming a suspected wrongdoer changed following Sir Cliff Richard's privacy case against the BBC which was brought after the extensive coverage of the police raid on his home when he was misleadingly accused of improper behaviour in 2016. The judge decided that "until the investigatory phase was over, there shouldn't be any naming of the individual."
The second layer of protection arises in the employment contract. Any kind of breach of good practice whilst employed or allegations of inappropriate behaviour must be the subject of a confidential investigation. An employer cannot name an accused individual involved to senior management until the investigation has established the likelihood of the allegations being sufficiently plausible to warrant an extensive investigation. Further exposure of an accused individual can only come when, and only when, a thorough impartial investigation has concluded.
Daniel Theron, a partner, commented "human resources cannot release information, even to senior management, until such time assufficient credibility in the accusation has been established leading to the possibility that the allegations have some valid foundation and there is sufficient evidence to warrant a thorough investigation." Daniel further commented "in the event of the allegation potentially leading to a criminal charge, the police must be informed but confidentiality must still be maintained."
Giambrone & Partners' knowledgeable employment lawyers point out that If a person under investigation is identified and subsequently found to be without blame, an allegation of defamation may be viable. An individual's good reputation is considered to be extremely important and anything that detracts from it can do extensive harm, making a person unemployable.
Should an employer be made aware of an allegation, they should take immediate steps to deal with the individual, possibility placing them under suspension, if appropriate, during the course of the investigation. An employer should then comply with the Advisory, Conciliation and Arbitration Service (ACAS) code of practice and internal policy to investigate thoroughly whilst not subjecting the employee to unwarranted prejudice.
Employers must be cautious and ensure that they comply with the ACAS code of practice and relevant legal provisions to avoid the potential for litigation arising from employees subjected to inappropriate non-compliance. Should an employee be dismissed without merit or without due process, this may give rise to an employment tribunal claim.
Our employment lawyers have considerable experience in providing guidance when managing some of the most complex employment issues involving allegations of misconduct. We successfully concluded a mismanaged disciplinary procedure involving a serious allegation made against a member of staff employed a global conglomerate. Applying thoroughness and discretion, we were able to broker a settlement that was acceptable to all parties and navigated to a settlement that eliminated reputational damage.
The safest and most reliable way to ensure that there is no unexpected condemnation or censure arising from any serious accusations is to seek expert legal advice immediately.
Daniel Theron advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law.
Daniel enjoys a reputation of being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.
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