Former Top Gear presenter, Jeremy Clarkson and his employer, BBC to settle £100,000 plus for racial discrimination claim at work


You may recall the news last March that a BBC producer was subject to verbal and physical assault by Jeremy Clarkson, a Top Gear presenter, who was subsequently suspended and later denied renewal of his contract for the popular show by the BBC. Subsequently, the producer sued Jeremy Clarkson and the BBC for racial discrimination. After a preliminary hearing took place at the tribunal, the matter has been resolved with Jeremy Clarkson publically apologising to the producer and paying him over £100,000 with the BBC in settlement.

In this case, the producer claimed “racial discrimination” and “personal injury” against both Clarkson and BBC. The BBC’s internal investigation revealed that Clarkson had subjected the producer to “a physical altercation accompanied by sustained and prolonged verbal abuse of an extreme nature” – a 30-second physical attack after a sustained verbal tirade. The producer is believed to still be an employee of the BBC but hasn’t gone back to work since the incident.


Should the BBC be held responsible ?

This case highlights an important lesson in relation to an employer’s liability for the actions of an employee within the workplace. Under the Equality Act 2010 (“EqA”), anything done by an employee in the course of their employment “must be treated as also done by the employer” (section 109 (1)), regardless of “whether that thing is done with the employer's or principal's knowledge or approval (section 109 (3)).
So, an employer can be “vicariously liable” for racial discrimination or harassment committed by an employee “in the course of employment”. In most cases, harassment which occurs in the workplace will almost always be covered by the term “in the course of employment” however, the following factors will be taken into account, namely whether (1) the event took place on the employer’s premises; (2) the victim or discriminator was on duty; (3) the gathering included employees’ partners, customers or unrelated third parties; and (4) the incident took place immediately after work.

Further, in order to avoid its liability, an employer needs to show that it took “all reasonable steps” to prevent the employee from committing acts of discrimination or harassment (EqA Section 109(4)) and such steps must have been taken before the incident occurred. In this case, the BBC may have had a relatively weak argument that they had took all reasonable steps as there were numerous reports of controversies relating to use of racial terms by Clarkson on the Top Gear show.


Racial Discrimination and Personal Injury

Compensation for racial discrimination claim is uncapped, so it can be a frightening prospect for employers. This is calculated based on the loss the claimant has suffered – not only financial losses arising from the discrimination but also non-financial losses including “injury to feelings” as well as “personal injury” i.e. physical and psychological injury resulting from the discrimination.

Employers should be aware of the risk that they too can be jointly liable for racial discrimination if they have not had taken reasonable steps to prevent their employees from carrying out discriminatory acts or harassment. It is therefore important for businesses to have an appropriate employment policy in place and that it raises awareness of racial discrimination in the workplace through Human Resources training.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
Disclaimer
The information and any commentary on the law contained in this bulletin is provided free of charge for information purposes only. No responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by Lewis Silkin LLP or Centre People Appointments. The information and commentary does not, and is not intended to, amount to legal advice and is not intended to be relied upon. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not rely on the information or comments in this bulletin.

This information is supplied by Lewis Silkin LLP www.lewissilkin.comm

Article top