There being only so much fun you can get out of someone breaking an egg on Nigel Farage, no wonder the Press has now turned to Jeremy Clarkson’s alleged use of a word beginning with N during the filming of Top Gear.
Clarkson has not helped himself here, his ground shifting uneasily from (a) never having said the word because he loathes it to (b) deliberately obscuring it by mumbling, to the more than faintly unconvincing (c) having said it despite doing his best not to. For our purposes, however, let us heed his less than glorious past record in these things (some of it real and some of it clearly desperate extrapolations by Press detractors) and assume that he did in fact mumble something recognisable as the N-word. Let us assume also that he is your employee and that he is not (as he is for the BBC) one of your most profitable assets and for that reason, effectively bullet-proof.
What we then have is an ordinary employee who once used the N-word on a video-clip which was made some years ago and never broadcast, which generated no complaints from anyone there at the time and which he took deliberate, if not wholly successful, steps to obscure. In the interim, many of your other employees have been filmed and broadcast in glorious digital clarity using language covering the entire spectrum of possible offence from the obscene to the profane and the ageist to the outright gynaecological, in each case without anyone so much as raising an eyebrow.
That leads us to two possible conclusions – either this is more about Clarkson than anything else, or there is something uniquely unacceptable about the N-word, no context in which its use could be acceptable, and that any utterance of it, however muffled, must therefore justify immediate dismissal. Like Golliwog in effect (see our post of 13th December https://www.employmentlawworldview.com/golly-folly-gets-chef-in-a-jam-in-uk-employment-tribunal/), the very Voldermort of nouns. What if Clarkson’s mouth had formed the word but he had made no sound, or if he had used some rhyming word which made quite clear (indeed highlighted) the omitted N-word? Is the mere starting down the path of eenie meenie miney mo not going to bring the word to the mind of the viewer? Or at least the viewer of an age which remembers that as an innocent nursery rhyme, not a quick ticket to a P45? Is this not getting close to the point of saying that if you visibly think the word at work, that is gross misconduct?
Objectively, and ignoring the baying of the crowd, could this be grounds for a fair dismissal? It is not disputed that Clarkson took deliberate steps not to say the N-word audibly, or indeed that it takes some real effort, the volume cranked up to 11 and the services of specialist audio analysts to discern at best that the word was probably used. This is not the unthinking causing of widespread offence (or not until the Daily Mirror got hold of it, at any rate). It is not in the same league as the “slope” remark in Top Gear’s recent Burma Special. The BBC admitted that it knew this to be a slang reference to individuals from certain parts of South-east Asia but even the most lightweight research would have shown that word to be viewed as actively offensive.
No one would condone Clarkson’s use of the N-word, if that is what it was, but in these particular circumstances I would suggest that it does not get close to the level of severity required to justify the summary dismissal which some have called for.