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Star in an unseasonably timed fracas – what to do with a ‘Clarkson’ case?

car hooking upBrian Campbell Brodies LLPThe conduct of Top Gear presenter Jeremy Clarkson is in the news again. Even non-viewers of the BBC’s flagship show will have been aware of his lengthy catalogue of misdemeanours, from upset caused to various society groups and, at times, entire nations (cyclists, Mexicans, Argentinians) to accusations of racist language in rehearsals. Many employers will be grateful not to have such a high profile HR headache to deal with, but for others this may be reminiscent of a repeat.

The latest bump in the road for the show’s chief writer and presenter came last week in the form of a reported ‘fracas’ between him and a producer at the end of a day’s filming. This led to his suspension and cancellation of the show’s planned airing on Sunday evening.

Whatever view one may take of the facts such as they have been released, it is interesting to watch developments from an employment law perspective. Among other things, the case highlights the limitations of the ‘normal’ approach to alleged misconduct where the perpetrator is so valuable to the employer. With worldwide sales of Top Gear netting the BBC millions of pounds annually, Clarkson undoubtedly is such an individual.

Nowadays more than ever it is straightforward to carry out a conduct dismissal. Assuming the employee has gained the required two years of service, they have to contemplate whether it is worthwhile even to make a claim, given such factors as tribunal fees, possible legal costs, the stress of the process and prospect of being liable for the employers’ costs if their claim is deemed particularly weak. Furthermore, each element of a possible claim is capped which can further reduce the attractiveness of tribunal litigation as an option. Employers can estimate and budget for what is normally a relatively modest sum when weighing up the decision to dismiss. Had the producer been alleged to have assaulted Mr Clarkson rather than vice versa, one would not be surprised to hear of a relatively swift termination of his contract.

Here, however, the shoe is very much on the other foot. Clarkson is both immensely popular (nearly a million signatures to a petition demanding his immediate reinstatement and rising) and more relevant still, an economic asset. Viewing figures of BBC2 dropped by 4 million on Sunday evening when a substitute programme was aired. For Clarkson and potentially his production team and co-hosts to join a competitor channel and produce a similar show would, literally, add insult to injury. So what can an employer such as the BBC do when faced with talent which won’t behave?

One key measure is to ensure adequate post-termination restrictions are put in place when the contract is first entered into, and possibly at regular intervals, for example when payment and bonus terms are renegotiated. That way the individual will at least think twice before engineering an exit and setting up in competition. If they do, the employer may have a valid damages claim. That said, the likelihood of an employer putting in place extensive covenants will depend on the parties’ bargaining positions in the first place, and so it may not be easy. Further, the employer will have to be particularly careful not to breach the contract, for example by bringing about the circumstances which prompted the conduct in question, or suspending the individual on inadequate grounds or for too long. It may well be argued by Mr Clarkson’s representatives that the BBC has already done so.

Another method of protecting the business against high-level misconduct is to relate bonus entitlement to satisfactory performance. One would expect that given recent experience the BBC will have taken suitable steps. However, this again is subject to negotiation and will only act as a means to regulate behaviour or performance if the individual effectively cannot afford to lose out on the payment.

However the BBC has safeguarded its position via contractual terms, it may still be faced with a very difficult decision. If the allegations as reported are well founded – no disciplinary hearing has yet taken place – the nation’s broadcaster may be faced with a choice of either following principles of employment law and practice, leading to the end of one of its most successful programmes, or creating a problematic precedent for conduct cases among its many employees in the future.

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