Gross Misconduct and Final Warnings - Make Sure You Come Out on Top

May 19, 2015

Whether you are an avid Top Gear fan or not, it has been hard to miss the highly reported news that Jeremy Clarkson’s contract with the BBC has not been renewed following an alleged verbal and physical attack on his colleague. This decision was made despite the potential commercial implications the BBC could face from terminating the show, and over one million fans signing a petition for him to be reinstated.

The terms of Clarkson’s contract with the BBC are not publicly known, although it is rumoured that he is a self-employed contractor rather than an employee. If this is the case, he has no employment rights and the agreement between him and the BBC was merely a commercial arrangement terminable on notice or at the end of its fixed term.

However, if he was an employee on a fixed term contract and the BBC chose not to renew this, failure to do so could amount to a ‘dismissal’, particularly if he was deemed to be a permanent employee after serving under a number of successive fixed term contacts with the BBC. If this is the case, the BBC would need to have ensured that the dismissal was fair and that a correct procedure was followed to avoid a claim of unfair dismissal. This serves as a timely reminder to all employers of the importance of ensuring that they are acting reasonably when deciding to dismiss an employee.

It is reported that Clarkson’s actions were the last in a long stream of misconduct offences and that he had, in fact, received a final written warning following allegations of verbal abuse and racism.

Cases involving physical assault between employees would almost certainly amount to gross misconduct. In incidents of this kind, an employee can be dismissed immediately without notice; but a fair procedure must still be followed. 

The Employer Must Potential Risks 

Consider and ensure that they are treating the offending employee in a manner consistent with other employees

Not doing so could result in claims for unfair dismissal or discrimination 

Consider the risk that not dismissing the employee would set a dangerous precedent for what is deemed acceptable behaviour in the workplace

If further acts of physical violence against an employee are committed in the future, the employer would be deemed to accept this kind of behaviour - consequently having difficulties in justifying any dismissal for the same offence in the future.  

 Ensure that appropriate action is taken against the offending staff member to avoid facing a constructive dismissal or harassment claim from the victim

By allowing the colleagues involved to continue working together, the employer could be breaching the mutual trust and confidence between employer and employee. 

The BBC had its hands tied when dealing with Clarkson’s behaviour, and this offers a salutary lesson to employers when dealing with high profile or high flying employees failing to meet company standards. Whilst it may be tempting to overlook the unacceptable behaviour of high performing employees for the sake of the company’s performance, employers must remember to consider the bigger picture and ensure consistency, reasonableness and fairness at all times. By doing otherwise they could end up setting dangerous precedents for staff and expose themselves to expensive tribunal claims. 

Darren Hayward

About the author

Darren Hayward

Darren joined Nockolds in 2003 and is the firm’s Managing Partner and Partner in charge of our Employment Law Team. 
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