‘One more offensive remark, anywhere, at any time’ was the warning that journalist and Top Gear presenter Jeremy Clarkson was given by the BBC in May 2014. In his own words Clarkson referred to this as his ‘final warning’ after a series of high-profile misdemeanours. So when the news broke last night that he had allegedly been involved in what the BBC were referring to as a ‘fracas’, is the writing finally on the wall for the controversial journalist?
One key question may be whether the BBC is entitled to take into account the purported final written warning he received last year. The Employment Appeal Tribunal has relatively recently provided clear guidance on how valid warnings should be weighed in balance when deciding on further disciplinary action*.
Tribunals should not go behind a live warning to decide whether that warning should have been issued or not or a lesser sanction should have been applied. That said, employers should be aware of the factual circumstances giving rise to previous warnings when deciding to issue a further warning. In circumstances where the latest misconduct has a degree of similarity to the misconduct giving rise to the previous warning a more severe penalty may be applied the second time around. Likewise, if there is a degree of dissimilarity between the acts of misconduct a lesser penalty may be applied. That being the case, Clarkson’s so called final written warning was for offensive language and now it is alleged he was involved in a fracas. Would that dissimilarity in misconduct be enough to get him off the hook? That seems unlikely. In the same case, the EAT confirmed that a final written warning always implies that further misconduct of whatever nature will be met with dismissal, unless the terms of the contract provide otherwise or the circumstances are exceptional.
So are the circumstances exceptional? Undoubtedly. Top Gear without Clarkson is unlikely to be the Top Gear that 350 million people worldwide know and love. So may be the commercial pressures on the BBC are exceptional. However, the reports indicate this morning that Clarkson is alleged to have punched one of the show’s producers. If this is the case then most employers would view this as gross misconduct and of itself justify summary dismissal. If this is the case then dismissal would be the likely option regardless of the final written warning.
The investigation is said to be on-going and we wait to see how the BBC will deal with this latest episode.
* Wincanton Group Plc v Stone and another UKEAT/0011/12