Fighting Torque? Warnings, suspension and Jeremy Clarkson.

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Posted in:HR and Employment|March 13, 2015 | Join the mailing list

Over 825,000 people are said to have signed a petition this week in an attempt to “reinstate” Jeremy Clarkson, who has reportedly been suspended by the BBC pending an investigation into his alleged “fracas” with a producer.

Mr Clarkson is no stranger to trouble with the BBC and is said already to be on a “final warning” following claims that he used a racist word when filming an episode of the TV show, Top Gear.

This latest news story should bring to the forefront of employers’ minds a number of important issues concerning disciplinary procedures, such as whether to suspend someone accused of misconduct and also the question of whether a final disciplinary warning
is always final.

The Berg employment team has previously discussed this question of whether final means final in our article about the case of Wincanton Group Plc v Stone & Gregory.   In its judgment in that case, the Employment Appeal Tribunal (“EAT”) took a common sense approach
and said that “unless there are exceptional circumstances, a final written warning should be just that – final.”

However, it’s always advisable for employers to avoid kneejerk reactions and to consider whether there are any exceptional circumstances which mean that it would be unfair to dismiss an employee who is on a final warning and then commits an act of further misconduct.      

Similarly, employers dealing with gross misconduct by an employee need to avoid simply assuming that this means that dismissing the employee will be a fair thing to do. The EAT case of Burdett v Aviva Employment Services involved an employee who was dismissed
after admitting gross misconduct and the EAT stated that employers faced with a finding of gross misconduct still need to consider whether there are any mitigating circumstances that might make dismissal an unreasonable response.

Another question to consider when faced with allegations of misconduct against an employee is whether suspending that employee while the matter is looked into is the appropriate thing for the employer to do. Once again, kneejerk reactions should be avoided
and the employer needs to bear in mind the difficulties that are usually caused for an employee if they are not allowed to come into work while their alleged misconduct is looked into. Absence from work frequently sets colleagues’ tongues wagging and it can
be very difficult for the suspended employee to face returning to work after the disciplinary process has ended, even if the outcome of that process was that they were found to be innocent of the allegations against them. Employers always need to consider
whether suspension is reasonable and necessary and if an employee is suspended, then the length of that suspension should always be kept under review, so that it doesn’t continue beyond what’s reasonably appropriate.                  

In light of all the above, it’s clear that dealing with suspension, alleged misconduct and the imposition of warnings and dismissal is often not straightforward for employers and in order to be confident, you should always ensure that you take pragmatic and
commercial legal advice before acting.

For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact
Nigel Crebbin of the Berg Employment Team on 0161 833 9211 or email him at

Follow us on Twitter: @Berg_HR

(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should
be obtained before taking, or refraining from taking, any action as a result of this article.)

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