Jeremy Clarkson – is this the end of the road?

It would be a strange and comparatively silent world without Jeremy Clarkson grabbing the headlines every few months as the central character in another story of outrageous, politically incorrect, behaviour.  And here we are again with the controversial Top Gear presenter accused of ‘punching’ a producer.  Unfortunately for Clarkson, reports suggest he was already on a ‘final warning’ for using a racist word last May.

In the real world – a world with which celebrities and “talent” appear disturbingly unfamiliar  – an employee on a final warning who was found guilty of punching a fellow colleague would be summarily dismissed for gross misconduct.  But in the world of entertainment someone like Clarkson will be regarded as “talent” – and so is likely to be under contract with the BBC, or a programme production company, to provide his services.  It’s unlikely that Clarkson is a humble employee of “Auntie”.

A vehicle for controversy . . . .

Of course Clarkson is no stranger to controversy:

  • July 2008: Clarkson drank a gin and tonic while behind the wheel of a 4×4;
  • November 2008: Clarkson joked how lorry drivers “murder prostitutes”;
  • February 2009: Clarkson named Gordon Brown as a “one-eyed Scottish idiot”;
  • October 2009: Clarkson claimed the BBC was obsessed with hiring black, Muslim lesbians to counter the number of white heterosexuals in its ranks;
  • July 2010: Clarkson’s infamous burka and lingerie joke;
  • August 2010: Clarkson reviewed a Ferrari as ‘special needs’ and a ‘simpleton’;
  • February 2011: Clarkson sparked a diplomatic incident with the Mexican ambassador;
  • January 2012: Clarkson made provocative remarks concerning India’s clothing, trains, food and history;
  • May 2014: Clarkson had to apologise after appearing to mumble the ‘N’ word;
  • July 2014: Clarkson breached Ofcom guidelines when he referred to an Asian as a ‘slope’; and
  • October 2014: Clarkson drove through Argentina with a number plate apparently referring to the Falklands War.

Highway Code

How should an employer react if one of his employees was accused of throwing a punch?  Well, first of all, a written disciplinary procedure should be in existence governing all staff.  The procedure should comply with the standards set by the ACAS Code of Practice – the employment equivalent of the Highway Code.

Independent Suspension

The procedure will give the employer the right to suspend an employee in order to investigate concerns about work, conduct, or absence where those issues are thought to warrant disciplinary action.

Investigation is arguably the most important step in a disciplinary process.  Ideally, the person conducting the investigation should have no connection with the circumstances giving rise to the allegation, so that person can establish the facts in a fair, open and impartial manner.

Whilst suspended from work employees keep most of their employment rights including, vitally, pay – though a well-drafted contract or disciplinary policy may offer the opportunity to withdraw the benefit of a business “tool” such as a company car.   Generally it will be perfectly permissible to instruct an employee not to have any contact with colleagues or any other people connected to the employer.

Advanced Driving

An employer who wants to avoid employment road-accidents should:

  • write to the employee identifying the issue which is causing concern and confirming the need to suspend in order to investigate
  • hold an investigative meeting with the employee (and meetings with any other witnesses), and, finally (where the investigation shows that a disciplinary hearing is warranted)
  • meet the employee again to have a disciplinary hearing and make a disciplinary decision.

Of course if a disciplinary sanction is imposed the employee must be offered the chance to appeal that disciplinary decision.

Going Through a Red Light

Gross misconduct is the employment equivalent of driving through a red light.  ACAS suggest that gross misconduct might include bullying, gross negligence, serious insubordination and, of course, fighting.  If an employee in Clarkson’s position was found guilty of punching (fighting) he could be dismissed without notice or pay.

However, this does not mean an employee can be dismissed without the employer following the ACAS Code of Practice.  The employer must undertake a thorough investigation, hold a disciplinary hearing, give the employee (accompanied by a companion, if requested) the opportunity to put his case.  And as we have seen, if the decision is to dismiss, the employee must be given the opportunity to appeal.

So what about Clarkson?  Well, as we have speculated, he is unlikely to be an employee of the BBC.  But it would seem to be a safe bet that whoever he is contracted to will have made sure that the legal documentation has some suitable small print which gives them the write to “fire” him if he misbehaves or brings the programme maker into disrepute.

Penalty points or a ban?

Whilst the Top Gear presenters, including Clarkson, debate on Twitter what film should be aired whilst the show is off air, a petition has gathered strength calling for the reinstatement of Clarkson – #BringBackClarkson.

But does this incident show that Clarkson has covered too many miles, is no longer reliable, and should perhaps be replaced by a new model with greener “emissions” and a more socially acceptable image?

It seems a safe bet that Clarkson’s unique broadcasting style has earned him as many supporters as it has detractors.  Is Clarkson a journalistic “classic car” or an MoT failure destined for the scrap heap?

As someone said, “On that bombshell . . . . “

Richard Parr
Richard Parr

Richard Parr
Partner
Employment Department
0113 227 9246
RParr@LawBlacks.com

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