Race discrimination: Oisin Tymon -v- Jeremy Clarkson

Want to know a bit more about Jeremy Clarkson and the BBC being sued for race discrimination?

You may just remember that Mr Oisin Tymon, a BBC producer on Top Gear, was subject to an assault by Clarkson in March this year.  At the heart of his complaint filed in the Employment Tribunals in Central London seems to be an allegation that Clarkson called him a “lazy Irish c***” but included in the complaint is reported to be a claim for personal injury.  That may tell us more than the parties, who are keeping very tight lipped at the moment, are letting on.

Following its internal investigation, the director general of the BBC, Tony Hall, stated that Clarkson had subjected Mr Tymon to “a physical altercation accompanied by sustained and prolonged verbal abuse of an extreme nature”.   The allegation in the Employment Tribunal fits neatly with that, and chimes well with the sometimes sneering humour towards other nations which has helped promote Clarkson’s fame.

Against that background, which would no doubt be raked up, Clarkson may be nervous about his chances of persuading a Tribunal that he didn’t make the alleged insult.  Of course, he may even have admitted it already and, in the midst of the fracas that occurred, it may have been just a small part, just one insult of many.

On its own such an insult is likely to viewed as racial harassment and would normally attract a modest award for injury to feelings, certainly less than £1,000.  That is because an award is intended to reflect the hurt suffered and most people, though stung, would not suffer any lasting harm.  As Mr Tymon has remained employed by the BBC and been given its full public support, on the face of it he hasn’t suffered any loss of earnings either, which is always the largest part of any high value discrimination award.  So why is it being reported that Mr Tymon is seeking in excess of £100,000?

It would seem he may be envisaging his career at the BBC coming to an early end or that he has suffered some other financial loss because of this incident.  However, Mr Tymon still has to show that the injury and losses he is claiming do in fact result from the discrimination.  That may be his most significant hurdle.  Whatever serious injury or financial loss he has suffered, it surely wouldn’t result from a single remark, or even from the sustained abuse or punch on that fateful night (if it could be shown that wider attack was inflicted wholly or partly because Mr Tymon is Irish).  It might result from the intense media coverage which he has suffered but Clarkson will not be held liable for that.  If the matter does reach a full and public hearing, Mr Tymon may receive even more media attention but he might not get much of a financial reward.

Whatever award is made, if the matter doesn’t settle, it will be made against both Clarkson and the BBC and Mr Tymon could force payment from the party of his choice.  Not that this will be a significant financial concern for the BBC or Clarkson.   Apart from not wanting the stain of a Judge’s ruling against Clarkson, the pressure for settlement is to avoid publicity and that pressure will be on all sides.

It is doubtful we will learn much more.

Personal injury

One point of interest is that discrimination claim in the Employment Tribunal can include an award not only for injury to feelings but also for physical or mental injury resulting from the discrimination.  A split lip doesn’t attract much compensation anywhere.  In the County Court and High Court, a claimant has to show that it was “reasonably foreseeable” that the injury would result from the incident.  For example, anyone could foresee making such an insult would result in hurt feelings; it may not be foreseen that it would result in someone suffering depression.  By contrast, in a discrimination complaint in the Employment Tribunal foreseeability doesn’t matter; you just have to show that the discrimination caused the injury.  In this respect Mr Tymon may  have a significant advantage.

(In deference to the Clarkson brand, it is assumed he prefers not to be called Mister.)