Would I lie to you?

1st June 2023 | Mark Fellows | Employment, tribunal, disciplinary

It is fair to say that it has been a tough period for Philip Schofield. Head of Employment Mark Fellows at Sherrards solicitors in St Albans and London, considers the implications for employers who find themselves in similar situations, where it could be better for the employee to resign, rather than face disciplinary action or dismissal.

First the controversy with skipping the queue for the Queen’s lying-in-state, then the conviction of his brother for child sex offences and now his resignation from ITV on the back of the disclosure of his affair with an employee. The most recent controversy regarding his affair raises a myriad of employment law issues, such that this scenario could very easily find its way into an employment law exam paper. The reality is that had Schofield not resigned, ITV would have had a legitimate basis to take disciplinary action:

• It is being suggested that when the affair was investigated by ITV bosses in 2020, Schofield denied that it had happened. Clearly that is a dishonesty issue, and one which is sufficient on its own to result in a breakdown in trust and confidence. Such a breakdown will very often result in dismissal. Clearly there may have been mitigating circumstances that would have influenced that denial, not least the fact that Schofield had only just divulged his sexual orientation publicly in early 2020. Nevertheless, he lied to his employer about a very serious issue, and those indiscretions are often irretrievable.  
• It also raises the question about whether his actions were contrary to any ITV policy on relationships at work, which are commonplace within many organisations. There can be numerous implications of colleagues engaging in personal relationships at work, and particularly so in this case where one of the employees has the public profile that Schofield does.
• It would appear that the issue resulted in a feud between Schofield and his co-presenter, Holly Willoughby. Clearly, the dynamic between them is crucial to the success of a breakfast show and if that relationship has also broken down, it is difficult to see any other outcome than him being removed from that role.
• You can also understand ITVs concern about the reputational damage associated with this fall out. There has been some suggestions that it might mark the end of This Morning but such is the concern about the damage to the brand, that ITV have engaged a barrister to review how the matter was handled in 2020. Most disciplinary policies will have a list of offences that constitute gross or serious misconduct and that will typically include actions of the employee that serve to bring the employer into disrepute. Putting aside the rights and wrongs of the treatment that Schofield is now receiving, the fact remains that his actions have created a situation where ITV and This Morning is under some unwanted scrutiny.

With all of the above in mind, you can understand Schofield’s decision to resign, as clearly his position had become untenable. In many employment situations, it can be better for the employee to resign if facing the inevitable dismissal or disciplinary action; the difference here that this situation is being aired so publicly that the damage has already been done for both parties.

Mark Fellows, Head of Employment at Sherrards solicitors.