Most readers will be aware of the heavily publicised issue of Jeremy Clarkson’s recent bust-up with the BBC. It this alleged that Clarkson had punched and bloodied the face of an Irish BBC Producer working on the Top Gear show after allegedly not receiving his dinner. While clients may only be interested in this story from an entertainment perspective, there is employment law in the very foundation of this issue, and the BBC will follow procedures and come up against disciplinary issues that most clients will encounter at some point in their business.
Intoxicants at Work
Firstly this issue allegedly arose from Clarkson and his Top Gear co-presenters James May and Richard Hammond, arriving back to work after enjoying drinks at lunch. That alcohol, violent behaviour, high ranking status within the company, and much publicised previous media expose comes into play, the BBC must ensure their reputation is not damaged further by this incident. Returning or arriving to work while under the influence of alcohol is something that every company should take a zero tolerance approach to and each employer should have a specific written policy on intoxicants in the workplace. Regardless of the severity of the incident, or level of affect the alcohol has had on the employee, investigations should always be looked at so as to stamp out any repeats of such behaviour, and show how serious the company views such issues. Whilst dismissal is always a potential with gross misconduct cases, a first and final written warning can be an alternative if mitigating circumstances were to come to light where the employee advises of alcohol issues, as failure to consider such mitigating circumstances would lead to a strong case for unfair dismissal due to equality areas (alcoholism being classed as a disability) coming into play.
That Clarkson is a high ranking employee within the company would mean that like any high level disciplinary issue, the company may find it difficult to find the appropriate investigating officer who has not been involved in the case to date. Therefore, it could be a case that the company go with an external third party investigator to come in and deal with the disciplinary case from start to finish. The benefits of this are that there can be no argument of any biased opinion due to work relationships involved, and that there is no damaging of work relationships after the end of the process due to the investigations which took place. The external investigator(s) can simply come in as unknowns, and leave having fully and impartially investigated the incident and made their decision on the outcome to the company. From their own option, this impartiality would be key in their decision and tabloid coverage as well as misleading information on the case must all be avoided, nor form any part of the investigation itself.
One key learning aspect from the Clarkson case is the speed with which the BBC suspended the employee in light of the allegations. As with any case of gross misconduct, the speed of suspension is key. Allowing employees to work on in their roles after a gross misconduct issue has come to light will only significantly weaken the company’s defence that the gross misconduct dismissal was warranted when the employee was allowed to work on for even a short period of time. The argument for this is that the employment trust could not be breached irrevocably if the employee was allowed to work on after the incident.
Witness Statements and Evidence
Witness statements, like any serious incident, will prove key in this case and the validity of witness statements will be closely scrutinised due to the friends and co-workers present at the time. Should there be CCTV footage of the incident the company will have to use this as a key part of their investigation. BBC’s CCTV policy would no doubt outline that CCTV footage can be used as evidence in disciplinary cases and Clarkson would have to be allowed to view this footage prior to any formal disciplinary investigation.
Finally the recent media coverage would also suggest that Clarkson will indeed pursue legal action against the company should he be dismissed. This news, along with the onslaught the BBC has received from previous cases of failure to address employee issues correctly, would mean that this case, will put all the more pressure on the company to be procedurally perfect in their approach to this case from an employment law perspective. How much employers can learn from the case will come to light as the case progresses further but at the minute, aside from the publicity and media profiles involved, its employment law roots are no different than any other gross misconduct investigation. This matter is also a prime example of how internal disciplinary matters can result in negative publicity for an employer, particularly if the matter proceeds to a tribunal and a publically available decision is issued.
If you encounter any alleged fighting in the workplace, intoxicant issues, etc. then please seek advice from our 24 Hour Advice Service on 01 855 50 50.