Top Gear, Suspension and Disciplinary Hearings.

By Andrew Knorpel on 26 March 2015

You’ve got a great team and the team leader is your organisation’s shining star.  He makes you a lot of money and his very individual style is what distinguishes your service from that of your competitors.  But then he does something that’s unacceptable – well, it sounds unacceptable if true – and you feel you have no option but to suspend him.  He is well-liked by many of his colleagues and customers who clamour for him not to be sacked.

Although you may well recognise this scenario as being Jeremy’s Clarkson’s recent suspension and sacking by the BBC, the nub of these circumstances is not uncommon and will always create an awkward situation for the relevant employer who is thinking as much about the commercial consequences of any sacking as well as the potential employment relations ramifications.

However, some things are rather unusual about the Clarkson incident.  Firstly, the victim of a punch had not complained.  Secondly, Clarkson reported his own alleged wrongdoing.  Thirdly, Clarkson was suspended (and taken off air) before any investigation into the matter.  Finally, the suspension was in the full glare of publicity.

I have advised on many occasions where a disciplinary investigation has been occasioned by someone other than the “victim” reporting wrongdoing – an employer may well feel that any allegation of inappropriate behaviour must be looked into.  However, suspension before initial investigation (particularly in the knowledge that third parties outside the organisation would quickly become aware of it) is definitely the wrong way round and, to use a motoring analogy, may well have back-fired on the BBC on this occasion in the court of public opinion.

Finally, it’s worth musing whether Clarkson would have had the right to have been accompanied by one of his fellow Top Gear presenters to any disciplinary hearing (putting aside the fact that none of them are probably employees).  Acas have just revised their Code of Practice in this regard following the Toal case in 2013.  This confirms that an employee has the unqualified right to bring their choice of trade union representative or workplace colleague to a hearing, provided the request to be accompanied is itself reasonable (which is highly likely to be the case).  So who would you choose – the Hamster or Mr Slow?

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