Expert view: Equality in Reverse Gear?

The most recent furore surrounding the BBC, and Jeremy Clarkson’s alleged use of the N-word, raises some interesting HR/Employment law questions.

Jeremy is accused of using the N-word whilst reciting a nursery rhyme in a take of Top Gear which was never aired. The final take used the word “teacher” instead. Jeremy denies he used the word but posted a video apologising for muttering a word which appeared to sound like the N-word.

Only days after this offence it transpired that David Lowe, a broadcaster for BBC Radio Devon, played a 1932 version of 'The Sun Has Got His Hat On', which unbeknown to him, contained a line with the N-word in it on his Sunday evening show last month. This prompted a complaint from a listener, which led managers to ask him to resign.

The second is the importance of consistency.

In deciding whether conduct has the effect, account will be taken of the perception of the victim, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

Therefore, Jeremy’s alleged conduct could quite easily give rise to liability, and therefore compensation, under the Equality Act if another employee or contract worker had been offended by Jeremy’s conduct.

However, David’s Lowes mistake may not be serious enough to be classed as harassment. Although quite clearly some people may have taken offence at the song played which contained the offensive word, when one looks at the circumstances and context in which the incident occurred, the test of whether or not it was reasonable for the conduct to cause offence may not be met.

So how does it come to be that David Lowe is asked to fall on his sword, yet Jeremy is issued with a final warning? Issues of inconsistency arise here which, in an employment field, can undermine an employer’s defence to a claim brought by an employee. What message has the BBC sent to the rest of its workforce?

An employer can be vicariously liable for the conduct of its employees and awards under the Equality Act are unlimited. Employers should also take note of the adverse impact such matters can have on the reputation of the business and therefore need to act accordingly when issues come to light, but ensure that they handle matters in a consistent and fair manner.