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.

By Oliver McCann, Employment Partner, Napthens.

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.

Jeremy has apparently been given a final warning about his conduct, though others in the BBC had wanted him to be sacked

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 first employment/HR issue is whether or not the use of the N-word is an act of discrimination and if so whether or not dismissal would be justified.

The second is the importance of consistency.

Under the Equality Act 2010, harassment is classed as prohibited conduct and is defined as engaging in unwanted conduct relevant to a protected characteristic (age, sex, race etc) which has the purpose or effect of violating another person’s dignity or creating a hostile, intimidating, hostile, offensive or humiliating environment for another person.

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.

Clearly the use of the N-word could have the effect so described and as such could be classed as prohibited conduct and therefore could be an act of discrimination subject to considering all the circumstances and whether it was 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.

Even where there is no aggrieved person who can claim under the Equality Act, there is of course a conduct issue to address as well as the reputational impact on the BBC (or any other employer in a similar situation) including the moral and ethical need to be seen to be taking a stance against conduct which is found to be discriminatory. Whether dismissal is justified depends on the particular circumstances of each case.

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.

David Lowe says it was an innocent mistake and had no idea the song he played contained that word. Further, only one listener complained.

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?

As employers, businesses need to be alive to these issues and the recent controversy surrounding the BBC should act as a reminder for employers to educate their workforce about its equality and diversity policy and ensure employees understand the boundaries as to what is, and is not, acceptable behaviour.

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.