News last week that BBC producer Oison Tymon has raised Employment Tribunal proceedings against both his employer and former Top Gear presenter Jeremy Clarkson serves as a timely reminder that the Equality Act can be used to hold an employer liable for employees' acts of unlawful discrimination. While Mr Clarkson may have felt a degree of relief earlier in the year when his erstwhile colleague chose not to press for a criminal prosecution after an alleged physical and verbal assault, it now appears Mr Tymon isn't prepared to let things go entirely.
Precise details of the claim are unclear but we know a preliminary hearing took place at the London Employment Tribunal and that one feature of the alleged assault was apparently abusive remarks making reference to Tymon's Irish origins. An educated guess would suggest the claim is one of race discrimination and given Clarkson and the BBC are both named as respondents, it looks like the vicarious liability provisions are being used.
It is of course possible for an employer to distance themselves from the actions of a rogue employee even when unlawful acts of discrimination are done in the course of employment. However, they need to show that they took "all reasonable steps" to prevent the employee from committing the particular act in question or anything of that description. What that means in practice is having robust anti discrimination policies in place and vitally, clear evidence that these are both publicised and enforced.
It's hard to imagine a more cynical diversity seminar attendee than Clarkson, trading as he does on his unique brand of politically incorrect journalism. That may well be his undoing as an individual target in the claim but provided the BBC have actively tried to engage with him on diversity and have a track record of wider enforcement, they should be in a stronger defensive position. The fact that they dismissed him despite his capacity for revenue generation should count for something. However, that may not be the full picture and it's possible historical tolerance of their "top talent" suggests it may have been too little too late and as much to do with PR management as anything else. We'll await the outcome with interest.
In the meantime, if you need a steer on workplace diversity training or an overhaul of your current policies in this area, please contact a member of the employment team.
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