Clarkson, the BBC and employer’s liability


 By Jason Galbraith-Marten QC and Rachel Crasnow QC

Tony Hall, the BBC’s Director General, announced on 25 March that Jeremy Clarkson’s contract will not be renewed after an “unprovoked physical attack” on a Top Gear producer, Oisin Tymon. It is widely reported that Mr Clarkson has hired lawyers, presumably to advise him about his rights against the Corporation. Less coverage has been devoted to the rights of Mr Tymon.

Jeremy Clarkson was suspended on 10 March, following what was called a “fracas” with Mr Tymon. The row, which took place in a Yorkshire hotel, was said to have occurred because no hot food was provided following a day’s filming. An internal investigation began last week, led by Ken MacQuarrie, the director of BBC Scotland. It found that Mr Tymon took himself to A&E after he was subject to an “unprovoked physical and verbal attack”. “During the physical attack Oisin Tymon was struck, resulting in swelling and bleeding to his lip.” “The verbal abuse was sustained over a longer period” and “contained the strongest expletives and threats to sack” Mr Tymon, who believed he had lost his job.

Could the contract have continued?

Many felt that retaining Mr Clarkson would have created a dangerous precedent. In future it would be much harder to dismiss employees for misconduct. Yet imagine a scenario where Tony Hall had conceded the violence was gross misconduct, but maintained there was sufficient mitigation in the form of the exceptional worth of Mr Clarkson as a presenter to avoid dismissal. Can commercial loss mitigate against a dismissible offence in such circumstances?  It is long established that the consequence of the dismissal upon the employee can amount to a mitigating circumstance (see the recent example of Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 84) but what about the impact on the employer? 

If dismissal would seriously damage the commercial interests of the employer, it is arguable that this could outweigh the seriousness of the misconduct in question and so cause a dismissal to be avoided.  The message this conveys, to both employees and those outside the workforce, is not an attractive one.

Vicarious liability

At common law an employer is vicariously liable for the tortious acts of its employees if they are so closely connected with his employment that it would be fair just and reasonable to hold the employer liable, Lister v Hesley Hall Ltd [2001] ICR 665 and Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366, both House of Lords decisions.

In Mattis v Pollock (t/a Flamingos Nightclub) [2003] ICR 1335, CA a nightclub owner was held liable when a doorman employed by him stabbed a customer in the back, severing his spinal cord and rendering him paraplegic. More recently in Wallbank v Wallbank Fox Designs Ltd [2012] IRLR 307, CA an employer was held liable for an unprovoked physical assault committed whilst at work. However there are limits. In the very recent case of Graham v Commercial Bodyworks Limited [2015] EWCA Civ 47 the employer was not held liable when one employee sprayed paint thinner on another then set it alight causing serious injury.

Was there a sufficiently close connection between Mr Clarkson’s employment as a presenter of Top Gear and the fracas that took place long after filming had finished? Probably. But not necessarily.  It would be very different if a claim were brought under the Equality Act 2010 – and in some reports Mr. Clarkson is alleged to have used racially abusive language toward Mr Tymon. Under s. 109 of the 2010 Act an employer will be liable for acts committed by its employees in the course of their employment. This has been given a wide meaning, reflecting the policy objectives of the  legislation, see cases such as Jones v Tower Boot Co. Ltd  [1997] ICR 254, CA and Chief Constable of the Lincolnshire Police v Stubbs [1999] ICR 547, EAT.

If a claim were brought under the Equality Act Mr Clarkson could be named as co-Respondent and, if the claim succeeded, would be jointly and severally liable for any award of compensation following London Borough of Hackney v Sivanandan [2011] ICR 1374, EAT, upheld by the Court of Appeal [2013] EqLR 249. Mr Tymon might find that a preferable outcome.