27 February 2016: Jeremy Clarkson and the BBC:
According to press reports this week, Jeremy Clarkson has apologised to the Top Gear producer Oisin Tymon and settled a £100,000 racial discrimination and personal injury claim after an incident last March in which Clarkson punched Tymon, leaving him with a bloody lip and swearing at him and referring to him as ‘Irish’. Mr Tymon was subsequently attacked on social media after Jeremy Clarkson lost his job with the BBC.
Quite what the terms of that settlement may be will no doubt remain confidential. It’s worth noting however that claims of unlawful discrimination can be brought in relation to the Protected Characteristic of both race and national origin (including being from Ireland), which presumably Mr Tymon claimed under the Equality Act 2010.
It appears that Mr Tymon sued both the BBC and Clarkson. Whilst employers can be vicariously liable for the acts of their staff, the BBC could seek to defend itself against liability. In brief, whether vicarious liability arises involves a two-stage test:
- First, is there a relationship between the primary wrongdoer and the person alleged to be liable which is capable of giving rise to vicarious liability?
- Secondly, is the connection between the employment and the wrongful act or omission so close that it would be just and reasonable to impose liability?
Case law on these two linked questions is complex. It is debatable whether the BBC could foresee the social media attacks that Mr Tymon suffered afterwards, and their decision to sack Clarkson was presumably taken to protect employees like Mr Tymon in the future.
Guidance for awards for injury to feelings in unlawful discrimination claims under the Equality Act 2010 were set out in the case of Vento v Chief Constable of West Yorkshire Police (No 2), and subsequently revised in Da’Bell and then then the 2013 Simmons case. At present, awards for injury to feelings will be assessed within the following three bands:
- Bottom band for less serious cases, such as a one-off incident or an isolated event: £660 – £6,600
- Middle band for serious cases which do not merit an award in the highest band: £6,600 – £19,800
- Top band for the most serious cases, such as where there has been a lengthy campaign of harassment. Awards can exceed this only in the most exceptional cases.: £19,800 – £33,000
In practice, Tribunal awards for injury to feelings are often in the low thousands, and will depend on the injury to feelings actually suffered by the victim in question. The social media attacks were not made by either Clarkson or the BBC, but it is possible that that would have put an injury to feelings award into the top band under the Vento guidelines.
Many employees would gladly be punched if they thought they were going to get a £100,000 pay-out, but an award at such a level would be unlikely unless loss of earnings following dismissal were also claimable.