Life after Top Gear? The road ahead for Jeremy Clarkson and the BBC
While Jeremy Clarkson remains on suspension with the world’s press camped outside his London home, his employment status at the BBC is not clear.
Jeremy Clarkson on Top Gear
If he is an employee, he has the right not to be unfairly dismissed, and where misconduct is the issue, an employer must have reasonable grounds for belief in the employee’s guilt, having carried out a reasonable and fair investigation – which must include notification of the allegations, a hearing and an opportunity to appeal.
However, awards for unfair dismissal are capped at £76,574, and legal costs in employment tribunals are generally unrecoverable. This makes the claim unattractive to many high earners, whose remedy is normally found in the contract.
At common law, a party to a contract can terminate it immediately if the other party has committed a serious breach. An employee who is on a final warning is in a particularly precarious position because even minor misconduct may justify dismissal, albeit on notice. The relationship between Clarkson and the BBC will be governed by a contract, which will doubtless say what constitutes a serious breach and what disciplinary process will be followed.
Fighting is universally understood to be a dismissible offence, so if the BBC is contemplating dismissal it must bear in mind two issues. Firstly, do the facts support dismissal? And secondly, regardless of the facts, can they really afford to let Clarkson go?
For all we know, he may already be considering life after Top Gear. But who owns the rights to the show and what could Clarkson simply walk off with?
It is a very interesting question as the programme, which has been around since 1977, is one of the world’s most successful TV formats – essentially the interplay between three people, with some motoring-related content.
Following a relaunch, fronted by Clarkson in 2002, it has enjoyed turbocharged success – in 2012 it was named in the Guinness Book of Records as the World’s Most Watched Factual Programme, it is sold in 214 territories worldwide and estimated earnings are more than £150m per year.
So who owns Top Gear? In 2008, a grateful BBC rewarded Clarkson by giving him 30 per cent of the series through a joint venture company, Bedder 6 Limited. Long-time producer Andy Wilman got 20 per cent at the same time with the remainder held by BBC Worldwide, the BBC’s commercial wing.
However, in 2012, embarrassed by the hefty dividends that Clarkson was reaping, the BBC bought them both out, with Clarkson netting £8.4m for his stake. This can only be seen as a good move by the BBC as its ability to fire Clarkson would be considerably constrained if he still owned 30 per cent of the series.
So, while for many members of the audience Jeremy Clarkson is Top Gear, in law the format and brand are owned by the BBC.
However, TV formats are difficult to protect in law, as 1970s TV presenter Hughie Green found out when he accused TV stations of ripping off his Opportunity Knocks talent show. The courts threw out his claims, saying that copyright cannot protect the format of a talent show as it was not sufficiently original.
Since then, the law has moved on a bit and it is likely that original elements of Top Gear, such as a Star in a Reasonably Priced Car, could be protected. While neither the BBC nor anyone else can own the motoring programme format, any rival programme on another channel would have to take care not to replicate the most original and distinctive elements of the Top Gear format.
The BBC also owns an extensive suite of trademarks over the Top Gear brand, including the Top Gear name and logos and covering uses ranging from broadcasting, television and publishing to “preparations for the hair” and soap. So sorry, Jeremy, the Top Gear hair tonic will just have to stay on hold.
All is not lost for Clarkson, however. He is likely to have producers and broadcasters lining up with offers – and while the BBC may own the rights to Top Gear they do not own rights in Clarkson’s own image and neither will they be able to prevent him from continuing his career as a professional television presenter and journalist.
Indeed, subject to their respective contracts, there is nothing to stop Clarkson, May and Hammond simply going to a new channel and starting a new show, with a different format and branding.
Sadly for disappointed fans, they will not have any legal recourse if the BBC decides to scrap the remaining episodes of the series, although it is likely they will face claims from some of the hundreds of TV stations to whom the series is sold.
Robert Taylor is a media and entertainment solicitor and Michael Sissons is an employment solicitor, both at Cubism Law