The BBC has asked its former newsreader Huw Edwards to return his salary from the period after his arrest to his resignation, but employment lawyers have expressed hesitancy about how more than £200,000 could be recovered if he refuses.
Edwards, 62, pleaded guilty to charges of having indecent images of children, with seven of the 41 illegal images of the most serious type, after he resigned from the corporation in April.
The corporation was informed that Edwards had been arrested but continued to employ the veteran broadcaster for around five months until he left on medical advice.
On Friday the BBC said in a statement it had “authorised the Executive to seek the return of salary paid to Mr Edwards from the time he was arrested in November last year”.
“Had he been up front when asked by the BBC about his arrest, we would never have continued to pay him public money,” the statement from the corporation also said.
“He has clearly undermined trust in the BBC and brought us into disrepute.”
Here is a round-up of questions the PA news agency asked employment lawyers about the feasibility of this happening:
– What is the procedure if Edwards voluntarily returns his salary?
Sarah Chilton, an employment lawyer and senior partner at the firm CM Murray LLP, explained that “normally the only way employers would recover salary from an employee would be if it’s been an overpayment, rather than just a payment of what they were contractually owed”.
She added: “Even then, there are certain circumstances in which, if you’re overpaid and your employer doesn’t have a contractual right to take money back from you, then they might have to rely on you giving it back voluntarily, or they might have to sue you for it.”
Ms Chilton said there needs to be a provision in the contract “which allows an employer to deduct those sorts of overpayments from future payments”, and if that is not there then the recourse is they need to “get it paid back from you separately”.
A&O Shearman employment partner Kate Pumfrey said there has been “precedent” and “examples of chief executive officers of listed companies giving back their bonuses on a voluntary basis”.
– Can the BBC get back the money back if Edwards refuses?
The BBC has not confirmed any legal action if Edwards refuses to return the partial amount of his salary being requested and Ms Chilton cautioned that it “would be breaking new legal ground” if this is something that did happen.
She added: “I don’t know of it ever happening, so there’s one quick common circumstance in which employers, usually only in financial services, will be able to claw back money already paid to employees, and that derives from both a regulatory sort of requirement on those businesses to have that ability, and also from particular clauses in the bonus provisions of those employees to enable clawback where it comes to the salaries.
“So (for) the day-to-day regular salary of employees, I’m not aware of any situations where employers have either the ability in the contract to claw back pay, or have done so.”
Ms Chilton said there is “aspirational legal claims” that an employer could use to get back a salary, but she would be “absolutely shocked if there was any ability in the contract” to do so.
She added that previously claims have centred around a person in a partnership position at a “law firm or a financial services business”, where they are a “very senior person in the business”.
However, when it comes to Edwards, Ms Chilton said: “So, yes, he was paid a lot of money, and, yes, he’s very high profile (but) he wasn’t actually responsible for running any part of the BBC, so I don’t think he is in that category.”
Ms Pumfrey said the BBC’s “options are going to be pretty limited”.
She added: “The only basis that I could see for a clawback of salary would arise where there was a contractual agreement that salary could be repaid in certain specific circumstances, such as where someone has been convicted of a criminal offence.
“And that would be an unusual provision, that’s not something we typically see.
“We do see bonus clawbacks, so clawback of incentive pay a little bit more, but even that is a difficult claim for an employer to bring.”
– What about bringing the BBC into ‘disrepute’?
Director-general Tim Davie has previously confirmed that high-profile staff members have in their contract a clause about not bringing the BBC into disrepute, but employment lawyers said that a legal case on this basis would be difficult to bring.
Ms Chilton said there is an “esoteric legal argument” about if an employee has “acted in bad faith”.
However, she said that it would be an “incredibly unusual contract”, where “if you bring your organisation into disrepute, then you will pay us back the money we’ve paid you”, and it is unlikely something an employee would sign up to those terms.
– Can you stop paying someone when they are suspended?
The BBC is also looking at “lessons from this period, including the BBC’s approach to the rules surrounding payments when employees are suspended”, it said on Friday.
Ms Chilton said “employment law basically requires you to pay someone while they’re suspended” and during this period it means “you haven’t satisfied yourself that they have done something that warrants termination, and if you have, you should be sacking them, not keeping them suspended”.
She added: “So not paying someone who is suspended is effectively penalising and sanctioning someone who may have done nothing wrong, because you haven’t concluded that they’ve done something wrong.
“And an employee who is denied their pay while suspended would probably have a claim against the employer.”
Ms Pumfrey said it would have to be done with the employee agreeing “either at the point of suspension or provided for in a contract”.
She added: “So, they’d need to agree up front or at the relevant time. But you can see that that would be quite a difficult thing to agree.”
The lawyer said it would be “very risky from an employment law perspective” to do so without paying the suspended employee, who could be entitled to a claim as a result.
“I’ve never seen an employee be suspended without pay, and I’ve been doing this job for 14-odd years,” she added.
She also said “to suspend someone, even on a paid basis, is quite a significant step and carries a degree of employment law risk”.
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