Ignore the facts

Judgments are intended to explain to the parties why they won or lost. I don’t believe that the judgment in Maistry v BBC (4-04-2012) does that. Nor do I think that the Court of Appeal judgment (9-07-2014) makes matters any clearer. Is the case representative of the legal process in Britain?  Is it impossible for ordinary folk to understand the law? I am hoping careful reporting will allow people to judge for themselves.

The BBC claimed it had dismissed me for poor performance. The only investigation of these performance issues was undertaken after I was sacked following a capability process lasting more than three years. It found that after 14 years at the BBC I had failed to demonstrate entry level skills like editing a basic package. But this was patently an impossible claim. The BBC admitted in writing that it had been broadcasting substantial documentaries I had produced and presented.

A more specific reason given for my dismissal was that I had forwarded press releases to colleagues. Another was that I had failed to attend a training session two months after I had been dismissed. I argued in court that such patently ridiculous charges  could not be raised by a reasonable employer. Legally none of this matters.

Employment Tribunals are solely responsible for making findings of fact and these cannot generally be challenged on appeal. And so in Maistry v BBC the facts are not in dispute. ‘Many’ of the facts in the case were decided in favour of the BBC because the Tribunal drew an adverse inference against my credibility. It found I had failed to challenge the BBC’s claim that it did not know I believed in the BBC Values all employees must follow. But the  important thing to remember is that facts cannot be brought into play.

Those of us  of limited means must seek redress at Employment Tribunals which operate under rules enabling them to  deal with cases fairly and justly. When Maistry v BBC began, access was free and costs were only awarded against claimants for the most flagrant abuse of the system. Now there are fees, and the maximum costs of £10, 000 were awarded against me for bringing a claim the Tribunal found was misconceived from the start. This despite the fact that a previous Tribunal had ruled the case could proceed to a full trial.

These fees matter. I would have appealed the Tribunal’s refusal to admit as new evidence statements made and endorsed by the BBC Management Board proving my case. But that would have meant ‘risking’ £400 which I did not have.

The advice from the NUJ’s lawyer was that case-hardened judges are not interested in the facts. It was difficult to prove unfair dismissal as it was now almost impossible to show an employer had acted unreasonably. I understood that it would be reckless to squander union funds in such a situation. So I went it alone.

Proper consideration of Maistry v BBC must be detached from the Tribunal’s findings of fact. If the Tribunal found the world was flat, that would be so and no complaint may be raised. Findings may be challenged on the grounds of perversity and bias but it is accepted that this is a particularly high hurdle. Of course there are those of us who are inclined to believe that perversity and bias are just that and have little to do with the Grand National.

Maistry v BBC suggests the monopoly of fact finding by Tribunals, and the ease with which appeals may be dismissed as simply an attack on such fact finding, may be part of the problem. For now, ignore the facts.

A useful overview of the case and why it is important is provided in the ECHR Application( 27-10-2014) under A Case Note.

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