Jeremy Clarkson: should I stay or should I go….?
Jeremy Clarkson is no stranger to controversy with his deliberately provocative and tongue in cheek style of presenting. Unfortunately another Clarkson saga once again poses a headache for the BBC. Despite Clarkson being known for his ‘pulling no punches’ approach, on this occasion he has in fact pulled a punch, at least metaphorically speaking.
Clarkson has been suspended pending an investigation following a fracas with a Producer where it is alleged that he punched him in a row over wanting steak for dinner (yes – you read that right). Following controversy last year, it was reported that Clarkson was given a final warning and warned that he may be sacked for further similar behaviour. In fairness however, he has stayed out of trouble (at least publicly) for nearly 5 whole months.
Top Gear is BBC2’s most popular show and already, several hundred thousand people have signed a petition in support of the Presenter. The BBC is therefore faced with a dilemma over the Marmite Legend. If, following an investigation, the allegations are well founded, it ought to be seen to be sacking Clarkson. He is on a final warning; physical assault will almost certainly warrant gross misconduct and therefore summary dismissal, regardless of any previous disciplinary history. It owes its other employees a duty of care. It runs the risk of a constructive dismissal claim from its Producer if it fails to dismiss Clarkson and by implication is seen to be endorsing physical assault in the workplace as acceptable behaviour. It risks setting a precedent. On the other hand, Clarkson is extremely popular and will inevitably be poached by another TV station. The BBC will lose thousands of viewers, not to mention revenue, including a multimillion-pound bill for suspending broadcasting.
So, with conduct being a potentially fair reason for dismissal, what should the BBC do? Firstly, it will need to carry out a reasonable investigation. Based on that investigation, it then needs to establish whether it holds a genuine belief that Clarkson was guilty of misconduct. Finally, it needs to consider whether it would be reasonable in all the circumstances to dismiss him, in other words, whether it would fall within the band of reasonable responses to treat the misconduct as a sufficient reason to dismiss. It needs to ensure it follows a fair procedure and adheres to the ACAS code of practice.
In deciding whether it is reasonable to dismiss, relevant considerations may include the background to the offence (including previous warnings or similar offences), prior disciplinary record, admission and remorse, provocation or acting under stress, the employee’s length of service etc. If what has been reported is to be believed, let’s just say it may not bode well for Clarkson, at least from a ‘legally correct’ perspective. However one should not underestimate Clarkson’s popularity – and money talks. It therefore remains to be seen what the BBC will do.
For advice or assistance on any employment law related matter, please contact Lianne Payne, Head of Employment at Askews Legal LLP.
E: Lianne@askewslegal.co T: 024 76 231000
Askews Legal LLP – Solicitors in Coventry.
