The BBC provided a stark reminder this month that the size of a business’ HR department does not reflect its ability, after an employment tribunal found that the former BBC technology chief John Linwood, who was sacked over the failed £100m Digital Media Initiative, had been unfairly dismissed.
Despite ruling that Mr Linwood had partially contributed to his dismissal, the tribunal said it was “astonished” at the BBC's “cavalier disregard” for the disciplinary process. The Commons Public Accounts Committee (PAC) concurred, branding the BBC’s HR process “a complete failure” and its handling of the scheme as “far too complacent”. In a statement, the BBC said: “At the time we believed we acted appropriately… We are disappointed with the outcome, but nevertheless we will learn lessons from the judgment and we're grateful to staff who were involved in dealing with a very difficult case.” The result of the case in favour of Mr Linwood, came after the tribunal had been presented with evidence showing the BBC had made a number of errors throughout the dismissal procedure. Shortcomings within the process included: failure to conduct an investigation before dismissal hearings began; interviewing replacements before the initial disciplinary hearing; and improper discussion within internal emails relating to Mr Linwoods removal.
Commenting on the outcome, ELAS consultant Peter Holmes, says: “Looking at this individual case, it would seem the BBC has either an inadequate HR department, or a flagrant lack of care towards employment law. However, when dealing with these processes, particularly within large organisations like the BBC, some common flaws come to light, which can portray almost any dismissal to be unfair. “Mr Linwood’s assertion that he had been made a “scapegoat” for the failure of a project is not uncommon within unfair dismissal claims and although a 'witch hunt' or 'conspiracy theory' is often alleged, it is hard to prove. But this case highlights the dangers of negligence within internal communications and of simply assuming that the correct disciplinary procedure is being followed. “If there are emails, minutes of meetings or other documents confirming the desire for the individual to be dismissed, the employee no longer appears paranoid, but becomes justified in that opinion. Moreover, these documents provide a shortcut to a large compensation in Tribunal, as the BBC will find out later in August when the remedy hearing takes place.” Employment law experts ELAS has created a shortlist of helpful tips in order to stay clear of litigation:
1. Do not put comments in email communications that you are not happy to publicly disclose at a later date. Any employee, authority or tribunal can ask for disclosure of all your emails, so it is always best to make sure there is nothing which is going to damage the integrity of you or your company in any way.
2. Follow your procedures. Your internal procedures are in place to protect you as well as the employee. Follow them, and if in doubt, act in a reasonable and fair manner.
3. Plan ahead. Complete a thorough and proper investigation. It is vital to be clear in terms of what it is you want to discipline the employee for and that you have the evidence to support your assertion. Without the correct evidence and documentation, any dismissal could be unfair.
4. Have someone independent hold the disciplinary hearing. The Prosecution in a criminal case do not also double up as the judge and jury. Therefore, if you are a witness, have another manager conduct the disciplinary hearing. Doing this will bring independence and fairness to the hearing.