BOOSTING HR rules would protect workers, says Malcolm Mackay
Jeremy Clarkson invokes the same kind of response as Marmite: you either love him or hate him.
There can be no denying that the Top Gear presenter is a highly creative individual – even if your preference is the more genteel Antiques Roadshow, you cannot deny that the car programme and all its offshoots has a massive following and is an international cash cow for the BBC.
However, looking at the matter in employment law terms, the BBC was probably right to sack Clarkson from the show after he admitted punching a programme producer at a North Yorkshire hotel in a row over a lack of hot food at the end of a day’s filming.
In my view, this is a straightforward issue of gross misconduct: people cannot punch others in the workplace – the workplace is not a professional boxing arena. Everyone is entitled to work without fear of assault. Indeed, the BBC should be commended rather than harangued for the way in which they handled this high-profile so-called “fracas”.
It was an extremely delicate situation and the organisation was right to suspend Clarkson pending a proper internal investigation carried out by Ken MacQuarrie, the respected director of BBC Scotland.
In normal circumstances, an employer dealing with this kind of behaviour would need to hold a disciplinary meeting and then set out the procedures. The employer will be expected to do this or they could be open to a tribunal claim for constructive dismissal. But drawing blood in an aggressive argument has no place in the modern workplace – however fraught, tired or stressed you might be. The fundamental lesson is that people are entitled to operate in a safe working environment, and this includes the production team at Top Gear.
The BBC’s case is likely to be far more complicated and will involve employment lawyers and probably contract and intellectual rights lawyers. Clarkson is not an actual employee of the BBC but a contractor. He also has other contractual rights and obligations bound up in his status as the frontman for Top Gear. This will take some time to unravel. There will doubtless be some hefty costs along the way, too.
The BBC remains a highly regarded institution. At times, it faces its critics and accusations of bias – exemplified by the Yes supporter during the Scottish referendum campaign blaming the BBC for the voting defeat – and its standing as a world-famous public sector organisation is permanently in the spotlight.
The Clarkson affair will rumble on for some time. There might well be some soul-searching inside the BBC about how such aggressive behaviour has been allowed to fester in this kind of organisation, and the human resources managers will be looking at employment contracts to see what is expected of individuals.
In the modern workplace, tensions can run high when people are under acute stress and expected to regularly go the extra mile. However, there is a misnomer that highly talented and creative people are difficult to manage. This is often used as a lame excuse to allow behaviour that is unacceptable. The law needs to be applied fairly to everyone, whether you are exceptionally gifted, talented or creative – or not.
If this high-profile incident allows the BBC to look more clearly at its working conditions, then there might be some good come out of an incident that has been a rather sad and disheartening affair.
It is also a salutary lesson to every other kind of company to consider how it manages its people. It’s a matter of asking yourself the simple question: do we have an environment where such an incident might happen? If they answer is “yes” then there are danger signals for your business and your employees. So the simple advice has to be: Sort it now – before it hits the headlines.
• Malcolm Mackay is an employment lawyer and founder and chairman of United Employment Lawyers www.unitedemploymentlawyers.co.uk
SCOTSMAN TABLET AND MOBILE APPS