Oh Mr Marmite, not again!
Love him or loathe him, Jeremy Clarkson can not be ignored. Just months after apparently receiving a written warning from his employer for misconduct, Jeremy is in trouble again and has brought the wrong kind of publicity upon his employer, the BBC.
As an employment lawyer, I cannot help but think that there will not be another workplace disciplinary hearing in the UK this year that will attract more public and press attention than BBC -v- Jeremy Clarkson.
Equally, If the decision is taken to dismiss Jeremy due to his alleged misconduct, then I feel sure that he will pursue his claim for unfair dismissal at the Employment Tribunal. Albeit that the maximum compensation available to him from such a claim, in all likelihood not much more than £76,000.00 in addition to any entitlements under his contract or employment, will probably be less than that which Jeremy currently earns from making a single episode of the worldwide hit TV show “Top Gear”.
If the rumours are true (and when is Twitter ever wrong?), Mr C stands accused of assaulting (read punching) one of the show’s producers Oisin Tymon at a hotel in Yorkshire, a few nights ago and after a long day’s filming.
This is a very serious allegation - one which employment lawyers like myself would be quick to remind our clients is “akin to criminal misconduct”. Not sure why we lawyers use the word “akin” ? I put it down to Judicial influence. Assault is a crime, pure and simple. Even if you are famous.
Whilst I haven’t yet been contacted by the BBC for advice on how to handle Jeremy’s disciplinary process - I suppose there is still time - this is a summary of some of the key messages I would pass on if the call comes in to my office:
- the seriousness of the charge dictates the level of investigation that the BBC must undertake.
- any unreasonable failure to investigate relevant facts or matters may entitle an Employment Judge to find that any resulting decision to dismiss Mr Clarkson was unfair, contrary to section 98 (4) of the Employment Rights Act 1996
- as such, if dismissal is under consideration, the effectiveness of the investigator’s actions in this case will be crucial in determining whether or not the BBC is able to defend itself against a claim of unfair dismissal
- it is essential that the investigation is carried out swiftly to quickly establish which facts are in dispute and which are admitted. Facts that are admitted need no further investigation, but in a case of this kind, facts in dispute must be investigated with great care and in an even handed manner - pursuing all relevant lines of enquiry whether they suggest guilt or innocence on Jeremy’s part
- the investigation should be conducted by someone who is a) impartial b) has not been involved in the issue until now and c) will not be involved in any decision making capacity at a later stage of the process.
- The investigator must interview the complainant (which I’m guessing must have been Oisin Tymon - the unfortunate producer who failed to ensure that a piping hot steak was available for Jeremy to consume at his luxury hotel on the evening in question, apparently)
- Next, he should interview Jeremy Clarkson himself (not in a disciplinary hearing but in an investigation meeting) to put Mr Tymon’s allegations to Clarkson and so establish which facts are in dispute;
- Only those facts that are disputed by Jeremy need to be investigated and the investigator should take all reasonable steps available to him, in proportion to the seriousness of the charge, to investigate those disputed facts;
- Assuming Jeremy denies that he punched his producer, the investigator will need to interview Hammond, May, any other members of the Crew who were at the hotel that evening and any other witnesses to the “fracas” however you wish to pronounce it (e.g. the hotel manager, other guests)
- Written notes and statements should be made of all interviews, which the investigator should invite the interviewees to approve and sign.
- The investigator should then consider whether there is any other kind of evidence available for review which could shed some light on the disputed facts e.g. CCTV evidence and the various social media tweets, posts and bloggs that were no doubt contemporaneously uploaded to the internet in the immediate aftermath of the alleged crime.
- Importantly, the investigator should also reflect on the background circumstances: seemingly, the starved Mr Clarkson and Crew flew in to the hotel by helicopter after a long day of filming to find (a few glasses of wine later perhaps) that Chef has switched off the oven and had gone home for the night and all that was available to satisfy the celebrity’s hunger was a cold plate of nibbles and some soup.
- So, was Mr. Clarkson’s judgment that evening clouded by a combination of his hunger and having downed his alcohol on an empty stomach perhaps? If so, who was at fault ? What is the BBC’s policy on drinking after work ? Was it in the habit of paying for Mr Clarkson’s alcoholic beverages within his routine expense claims ? Why weren’t he and his colleagues fed sooner in the day? What else, if anything, provoked JC or others to allegedly clench fists ? These are potentially important contributing factors that need to he weighed in the balance.
- Only after all these investigative steps have been carried out with due care and attention, should the investigator stand back, light his (or her) pipe, and decide whether to recommend to their superiors that there is a case for JC to answer at a disciplinary hearing
- Don’t make any hasty public decisions that could cause a reasonable man to believe that there may be an element of pre-decision to the disciplinary process, such as making it known to the public that there will be no more episodes of Top Gear for the foreseeable future!
- Oh yes, try to keep the fact of the investigation and possible disciplinary action against your employee confidential.
- Oops - too late!
Notwithstanding all the essential preparatory steps noted above, as I understand it the BBC felt sufficiently confident to announce yesterday that it will be writing to JC to tell him that he needs to attend a disciplinary hearing. Of course, that decision to convene a hearing could only have been taken fairly and reasonably once the investigator has completed their post investigation report.
Whoever it was who carried out that investigation (and was able to complete all steps in less than a few days of the event itself) is either one brilliant operator - quicker at their job than a Star in Reasonably Priced Car, or perhaps, just perhaps, they have missed off a few corners incurring out their investigation and might possibly live to regret the decision not to contact @the_emp_lawyer to ensure they kept their investigation on the right track.
So, when he reads the BBC’s formal invitation to attend his disciplinary hearing, to answer a charge of assault and no-doubt bringing his employers into disrepute, one has to wonder who will be more anxious about the forthcoming hearing, Jeremy or the poor unfortunate souls at the Beeb who are asked to handle this process in the public eye and decide Jeremy’s fate.
A couple of final thoughts:
- Surely Jeremy won’t be able to resist tweeting from inside his disciplinary hearing?
- Who will be his companion at the hearing? I am secretly hoping it will be his mate David Cameron….smuggled in to the room dressed as The Stig
- If Jeremy is dismissed and brings a claim of unfair dismissal - would he decide to represent himself at the Employment Tribunal hearing - as would be his right? It’s hard to imagine that a man with his self-confidence would think that any mere lawyer would do a better job than he could of cross-examining his would-be-then former employers!!