7 tips for the BBC investigation into Clarkson’s ‘punch’

He attracts adoration and loathing in roughly equal measure. Jeremy Clarkson’s suspension from Top Gear after allegations that he punched a producer was soon met by an online petition and close to a million signatures calling for his return. Politicians, including David Cameron, have waded in.

The stakes are high for the BBC and its notorious presenter. Depending on the circumstances, punching a colleague may well constitute gross misconduct and justify summary dismissal. Clarkson has previously received a final warning for other matters which would normally mean that any further act of misconduct would result in dismissal.

A team of BBC officials has been tasked with investigating the matter and, if necessary, disciplining Clarkson. It is a task fraught with many pitfalls for any employer, even without a household name at the centre of it.

To make their lives slightly easier, here are 7 tips for the BBC officials embroiled in the latest Clarkson saga.

1. Inform Clarkson of the specific allegations against him

It may seem obvious, but it’s remarkable how often employers either fail to do this adequately or completely forget to do it. Once detailed allegations have been made against an employee, they should be informed without delay of what they are accused of. Employees must be able to understand the basic case that they will be responding to.

2. Appoint independent, senior investigators

An employer should always appoint investigators (and if need be, disciplinary officers) who are either of a similar or a higher rank than the person being investigated. This is common-sense and helps to ensure that the process is independent.

In Clarkson’s case, this should be persons of considerable seniority in the BBC who are unlikely to be swayed by the presenter’s profile.

None of those involved in the process should be persons who witnessed or were present at the incident, or at any previous incidents of Clarkson’s misconduct. Clarkson should be informed by letter of the identity of the investigator (and any disciplinary officer) so that he can object to that person on the grounds of bias or partiality.

3. Interview the witnesses

Media reports suggest that the incident was witnessed by members of the public and BBC employees. The employer should interview any eye-witnesses to the incident. Any discrepancies should be put to the witnesses (including Clarkson himself) for their response. The interviews should be recorded preferably in writing, and the witnesses should be given the opportunity to read through the notes of their ‘statement’ and invited to sign and date it to confirm the accuracy of its contents. It is preferable to have a notetaker accompany the investigator to ensure that the interviews are recorded accurately.

4. Dial 999

An employer may have to consider referring certain types of serious misconduct to the police. If the police investigate and charge Clarkson and if he is later convicted or pleads guilty to a criminal offence, that makes the BBC’s job much easier as they can use this as conclusive evidence of his misconduct. Indeed, it may relieve some of the pressure on the BBC investigators.

If, as sometimes happens, there is a police investigation that runs parallel to a disciplinary investigation, the BBC should press on with its own investigation and come to its own separate conclusions rather than wait for the police and CPS to take action, as this could prolong the process by some months.

5. Previous warnings

Clarkson is hardly a model employee when it comes to his conduct. In May 2014 he received a final warning after using a racist term on film that was leaked to the Mirror. In the same year the programme was criticized after Clarkson used a derogatory term for Asian people in a Top Gear Burma special.

What should an employer do when investigating and disciplining an employee with an unattractive record? An employer may take into account the fact that Clarkson has already received warnings, including a final warning, even if they relate to a different issues (eg. racist remarks as opposed to physical violence). Previous warnings may be more relevant where the misconduct is similar and where the warning itself has not been challenged on an appeal and was issued after a fair process.

6. Take and keep good notes

In general, in order to avoid disputes in the Employment tribunal over what was and was not said in any given meeting or disciplinary hearing some years earlier, it is good practice to take and keep a good contemporary note of all relevant conversations. Handwritten notes should be typed up faithfully and all Parties should be given the opportunity to see the typed notes to confirm their accuracy or provide their amendments (regardless of whether those amendments are accepted unanimously or not).

Bear in mind that under the Data Protection Act 1998, anyone can request that an employer disclose any personal information that they hold on them. To avoid embarrassing emails surfacing later, all communications about the disciplinary process should be kept professional and impartial in tone and content.

7. Make the punishment fit the crime

If the BBC has followed the above tips and at the end of a reasonable investigation it genuinely believes that Clarkson punched his producer in the way alleged, this is likely to constitute gross misconduct which would normally result in summary dismissal. The BBC should consider what its internal policies have to say about any appropriate sanction that should be applied.

However, if the investigation uncovers a different set of facts that cast Clarkson’s conduct in a less serious light, then a lesser sanction or no sanction may be appropriate, in accordance with the BBC’s disciplinary policy. However, given Clarkson has already had a final warning, if any misconduct is found, dismissal is the most likely outcome.

This post draws on a handy new book, Employment Guide to Procedures, by Simon Harding of 36 Bedford Row, which I helped to edit.