Last week, Jeremy Clarkson’s lucrative but troubled relationship with the BBC finally came to an end. The cause of the separation has been well-documented but there are some interesting employment law points arising from the affair.
Mr Clarkson was suspended pending an investigation the day after he reported the incident. In practice, with such serious allegations it is common to suspend the alleged protagonist during the disciplinary investigation to preserve the status quo. The decision to suspend in these circumstances is unlikely to be criticised, but employers must be cautious about how the decision is communicated. It must not be seen as a predetermination of the matter before concluding a proper investigation and hearing. In this case, the pre-recorded “Top Gear” programme was ‘postponed’ from the TV schedules pending the outcome of the matter. Arguably, this was unnecessary and could have implied that the BBC had already made up its mind before the disciplinary investigation was completed. That said, there was a great deal of publicity and speculation leading up to Mr Clarkson’s departure including death threats against the victim of the fracas (Oisin Tymon) so under these circumstances one can see why the BBC was cautious.
It is worth noting that Mr Clarkson had already been given a final warning for his misconduct last year. However, in cases of gross misconduct such as this, it is legitimate for an employer to move directly to dismissal even without previous warnings. Inevitably, the fact that he had been involved in recent incidents did not help his cause or strengthen his defence.
The terms of Mr Clarkson’s contract with the BBC are not public although we understand that he is a self-employed contractor at the BBC, not an employee. His contract was not terminated; rather it will not be renewed and this has made the BBC’s decision less problematic from a legal perspective.
Had Mr Clarkson been an employee, then a failure to renew a fixed-term contract could have amounted to a dismissal potentially enabling him to claim unfair dismissal. However, the BBC’s disciplinary policy states that assault constitutes “gross misconduct”, so that, subject to following a fair procedure, an employee can be terminated immediately without notice. Even if this was not explicitly stated in the policy, an Employment Tribunal would almost certainly hold that physically assaulting a colleague would amount to gross misconduct, and Mr Clarkson would have had little to support an argument that the underlying reason for his dismissal was substantively unfair. We do not know the extent to which the BBC followed a disciplinary process, although in view of the time taken to reach a decision and the manner in which it was communicated by the Director General of the BBC it appears as though a fair procedure was adopted.
By making the decision not to renew Mr Clarkson’s contract, the BBC may have saved itself from potential claims further down the line from Mr Tymon, who is a BBC employee and could have potentially claimed constructive unfair dismissal if the BBC had failed to take appropriate action against Mr Clarkson. Despite the relatively high threshold to prove constructive dismissal claims, Mr Tymon would have had a strong case had the BBC allowed someone who had assaulted him to remain working on the same programme and thereby breached the implied term mutual trust and confidence that must exist between employer and employee.
Recent reports suggest that Mr Clarkson will work for other broadcasters and possibly for the BBC in the future. Any HR managers blessed with overseeing him would be well advised to dust off the relevant disciplinary procedures just in case!