03 Feb 2011
Top Gear comments could amount to racial harassment
Helga Breen, partner, Employment and Pensions
"Lazy, feckless, flatulent [and] overweight".
Surprisingly this comment by Top Gear's Richard "the Hamster" Hammond wasn't directed at his fellow presenters, Jeremy Clarkson and James May. No, Mr Hammond was apparently describing the entire Mexican race, throwing in for good measure that their food is like "re-fried sick". His undoubtedly offensive comments have resulted in a formal complaint to the BBC and the threat of a race discrimination claim by Ms de la Torre, a 31 year old Mexican lady who lives in London.
Although the majority of claims brought under anti-discrimination legislation (currently the Equality Act 2010 which came into force in October 2010) are brought in the employment context, discrimination, harassment and victimisation by people who supply services or perform public functions is also unlawful. Such derogatory comments could amount to racial harassment if the purpose or effect is to violate the dignity of the Mexican people in general and Ms de la Torre in particular or to create an intimidating, hostile, degrading, humiliating or offensive environment.
In addition to liability for race discrimination by its staff, from 6 April 2011 the BBC like all other public sector bodies will have a specific statutory duty to promote equality, to eliminate discrimination and to tackle prejudice.
As the nation's public service broadcaster, the BBC will be well aware of its duties under equalities legislation. On the other hand, Top Gear's reputation for lads' mag humour and barbed repartee have given the long running show iconic status and a cult following. The presenters' total lack of political correctness no doubt contributes to the show's consistently high ratings.
Taking a lesson from the recent events at Sky, the BBC would be well advised to ensure that they follow a proper procedure before taking any disciplinary action including dismissal and consider carefully whether a public and fulsome apology would be appropriate in the circumstances.
It remains to be seen if Mr Hammond and his friends will be let off with a warning this time or will be tried in the court of public opinion and shown the door.