Category Archives: disciplinary interview

Jeremy Clarkson and the Final Warning

Last week Jeremy Clarkson was in the news for apparently using the “n” word.  This latest utterance is the most recent in a string of what can only be deemed racially discriminating outbursts.  It seems that the BBC has had enough and given Clarkson a final warning that will remain on file indefinitely.

His previous comments include:

“If it turns out that a Malaysian customs officer cannot be bribed, I shall renounce Christianity and move to the Orkneys where, I’m told, everyone is Lucifer’s best mate.”

“We know also that the French are rude, the Italians are mad and the Dutch are a bunch of dope-smoking pornographers.”

“Each Wednesday, I have to make a 120-mile journey from Nairobi, south London, to Bombay, near Birmingham.”

“If you happen to be a homosexualist Cypriot, you cannot expect everyone in the whole borough to finance your perversion.”

In March Clarkson used the term “slope” in a Top Gear programme, which is a derogatory term for people of Asian descent.

This latest episode where he was reciting what once was an acceptable nursery rhyme that contained the n word which he mumbled but, nonetheless, said was filmed in 2012.  The footage, however, was not broadcast.   Clarkson subsequently apologised after forensic investigators confirmed he had said the word in question, but the situation has caused a furore in the press with many commentators calling for his sacking.

So has the BBC acted fairly by issuing a final warning that must remain on file indefinitely?  If Clarkson makes one more offensive remark he will lose his job.

The ACAS code of practice recommends that if a final written warning is issued the following should apply:

A final written warning should set out the nature of the misconduct or poor performance and the change in behaviour or improvement in performance required (with timescale). The employee should be told how long the warning will remain current. The employee should be informed of the consequences of further misconduct, or failure to improve performance, within the set period following a final warning. For instance that it may result in dismissal or some other contractual penalty such as demotion or loss of seniority.

Whilst the BBC have complied with many of the principles, having an indefinite final warning hanging over Clarkson with the threat of his every word being scrutinised is arguably quite harsh and misinterprets the ACAS code the aim of which is promote fairness.  It could be difficult for this controversial figure who has a history of being outspoken to comply. although he must do his utmost to do so.

I usually recommend to my clients that a final written warning should remain on file for twelve months and sometimes two years if the behaviour that warrants the warning has been sufficiently serious.  If the employee commits another offence whilst the warning is live, then dismissal could be the next step.  I also recommend that after the warning has expired the paperwork relating to that disciplinary situation is destroyed so it can not be used against the employee in future.

If Clarkson does not agree with this decision he can of course appeal.  He could also put in a grievance about the unfairness of the indefinite warning.






Undertaking a Disciplinary Investigation

It was reported recently that a union member was sacked by Salford Council for assault.  He went to an employment tribunal and won his case for unfair dismissal.  The tribunal found that the council had failed to establish that an assault had taken place.  In fact the employee had merely brushed past the manager with whom he was having a heated disagreement in a narrow corridor.
Such a case highlights the importance of rigorous investigation before taking disciplinary action particularly dismissal.  All witness should be thoroughly interviewed at least once if not several times if discrepancies come to light during the investigation process.  They should be interviewed individually using a question and answer format.  Alternatively they should be asked to provide their own statement which should be done whilst supervised.  All relevant paperwork/evidence should also be collated.  The process can be conducted by managers or, as it can take up time, by an experienced HR consultant.  Sufficient time should be taken to ensure the investigation is completed well and a comprehensive report written up.  The investigation forms the basis of whether to go forward to a disciplinary hearing or not.
It should aim to leave no stone unturned and, if done correctly, can prevent a costly miscarriage of justice.