Many of you will have read the recent reports concerning the settlement of the employment tribunal claims brought by Oisin Tymon, an assistant producer who worked on Top Gear with Jeremy Clarkson. The terms of the settlement are likely to include confidentiality clauses which prevent the parties disclosing the details. We are therefore not likely to ever find out exactly what has been agreed but it has been reported that the claim was settled for £100,000 with Mr Clarkson and the BBC both contributing to the payment.
The case is centred on allegations that Mr Clarkson punched Mr Oisin and called him a “lazy Irish c*nt” when Mr Clarkson was told that he could not have a steak for dinner. In these circumstances, many might ask why the BBC was responsible for contributing to the settlement payment. The short, and slightly pedantic, answer is that they were not – the BBC could have refused the settle any claim and tried their luck at the employment tribunal. This is misleading though, because the reality is that if the case had gone to Tribunal and Mr Tymon’s claims were successful then the BBC could well have been found vicariously liable for the actions of Mr Clarkson.
Vicarious liability makes an employer responsible for the acts of its employees committed provided these acts are carried out in the course of employment. This liability applies regardless of whether the employer is at fault in any way or not. Mr Clarkson was likely to be a freelance worker rather than an employee but vicarious liability would still apply if the employment tribunal found that the relationship between Mr Clarkson and the BBC was sufficiently similar to an employment relationship.
The BBC was wise to consider the risk of being held vicariously liable, especially in the light of the recent judgement in Mohamud v WM Morrison Supermarkets plc. In this case the Supreme Court decided that the Court of Appeal was wrong to conclude that Morrisons were not vicariously liable for the violent and abusive behaviour of one of the its petrol station attendants, Mr Khan, towards a customer. The Court found that although Mr Khan had acted in an appalling way, he did so in course of his attendance upon Mr Mohamud in the line of his duties.
In conclusion, employers need to be aware that vicarious liability will be interpreted broadly and they do not need to have been at fault to be found liable. Employers should therefore make sure they have adequate insurance in place to deal with any such liability and consider carefully the character of the individuals they choose to work with.
James Haley, Solicitor & Director at Just Employment Ltd