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The Clarkson furore – lessons for the ordinary employer

The dismissal of Jeremy Clarkson from the BBC, or to be more accurate, the decision not to renew his contract at the end of the month, has provoked an unprecedented level of controversy with over one million people signing a petition to reinstate the presenter after he was suspended.

Generic you're firedTo an employer lawyer, this may all seem a little surprising, if the reports of the incident in question are to be believed. Mr Clarkson’s fellow presenter, James May, hit the nail on the head in responding to a question as to whether the BBC’s decision was fair, when he said “It is probably within the law and their hands were tied”.

The BBC in this case was in the unenviable position of being damned if they did and damned if they did not. If they reinstated Mr Clarkson, with yet another slap on the wrist, they would be open to criticism that they were condoning his behaviour. If they terminated his employment, as they ultimately decided to do, they face criticism from the public from ruining their favourite TV show and sacking the goose that lays the golden eggs.

So did the BBC have any other choice? The easiest way to answer this is to look at the facts (as reported, with the obvious caveat that not all that is printed is necessarily true) and consider the risks to the ordinary employer in the same circumstances.

The facts appear to be that:

• The incident occurred in a hotel where the TV crew were staying whilst filming for Top Gear.

• Mr Clarkson punched a colleague in the face.

• The colleague subsequently received medical treatment for a split lip and dizziness.

• Mr Clarkson subjected the colleague to a tirade of abuse lasting around 30 – 40 minutes.

• This was overheard and witnessed by members of the public who were guests in the hotel.

• Mr Clarkson used racist language in referring to the colleague as a “lazy Irish *****”

• The language used generally by Mr Clarkson was abusive, offensive and threatening, leaving the colleague with the impression that he had lost his job.

• The abuse was unprovoked and the colleague did not retaliate even when being physically abused as well as verbally.

• Mr Clarkson was already on a final written warning for racist language.

• Mr Clarkson is also known to have been violent in the past (albeit in very different circumstances) as it was well publicised that he had previously punched Piers Morgan, the former editor of the Mirror.

The first problem for the BBC is that one of the most important messages in employment law is consistency. How can any decision be fair if it is one rule for one and another for another? This means that a failure by the BBC to act firmly in response to this incident leaves them vulnerable to numerous, costly arguments in the future from employees who believe they also should get away with bad behaviour.

The second problem is the risk of potential claims from not only the colleague in this incident but also other employees who believe they have been victims of racist or other discriminatory abuse and harassment within the BBC. Failing to take action over such a public outburst would leave the BBC with little room to argue that it did everything it could to prevent discriminatory conduct and would open the floodgates to potential compensation payments from others.

Finally, a final written warning is only ever a deterrent to any employee where there is a real likelihood of dismissal if there is further wrongdoing. As with children, if you threaten something but don’t follow through with the threat, it becomes worthless and useless. An organisation the size of the BBC simply cannot afford to be seen as all bark and no bite; disciplinary rules are there for a reason.

So, ultimately, it would seem the BBC has made the right legal decision. Whether the decision is a commercial disaster remains to be seen, although this is probably unlikely to be the case, once the furore dies down.

And to all the millions of fans who are outraged at the decision – perhaps they should put themselves in the colleague’s shoes and imagine it was them that faced a tirade of verbal and physical abuse from a senior colleague who was known for being offensive and difficult. Would they still be campaigning for that person to keep their job or would they be making the first appointment they could to see an employment lawyer?

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further