Two independent investigations – in the space of three years – have exposed a ‘culture of fear’ at the BBC. Dame Janet Smith and Dinah Rose QC found staff are deterred from reporting bullying, harassment and the abuse of power by the threat of victimisation or dismissal. The corporation intends to restore public trust in Auntie Beeb. It would benefit from reviewing Maistry v BBC, a claim of discrimination it defended unfairly and recklessly.

Ten managers and a presenter gave evidence for the BBC at a month-long trial in Birmingham in February 2012 which went unreported.The BBC claimed it dismissed the claimant in 2010 for incompetence following a proper capability process.The claimant’s view was that he was really sacked because he believed in and defended the BBC Values which all employees must follow.

A timeline of the ‘process’ at the BBC is useful.

• In 2004 an independent review proposed the Governors redraft the remit of the BBC Asian Network to encourage greater editorial ambition.
• In 2005, and somewhat surprisingly, the Network began an intensive  process of ‘transformation and evolution’ to target the youth market.
• In December 2005 a tier of assistant editors was appointed  to manage the Network. The claimant was not interviewed for his post. He ‘acted-up’ as assistant editor until the end of March 2006
• Between July and October 2006 the claimant was encouraged to seek an attachment at Radio 4.
• In May 2007 the claimant was made an offer of redundancy which he refused.
• In April 2008 the claimant was informed by Jonathan Aspinwall that he would face formal capability proceedings.
• In July HR introduced an informal four-week work improvement plan.
• In October the claimant’s grievance against the institution of capability proceedings was  dismissed by Andrew Thorman.
• In April 2009 the claimant’s appeal against Mr Thorman’s decision was dismissed by Laura Ellis.
• In September the claimant’s complaint of bullying and harassment made to HR Direct was dismissed by Rachel Stock.
• Later that month a six-week informal work improvement plan was implemented by HR manager Rachel Avenell and Ms Neila Butt.
• On 6 January 2010 Ms Butt issued an improvement note instituting a four week formal work improvement plan.
• On March 2 the closure of the Network was announced.
• On March 10 the claimant’s appeal against the institution of formal proceedings was dismissed by Kevin Silverton. On the same day Ms Butt informed the claimant that the formal plan had ended on March 5.
• On June 10 Ms Butt issued a final warning and implemented a new formal 8 week improvement plan.
• On 27 July the claimant’s appeal against this decision was dismissed by Keith Beech.
• On 23 August – to take account of sickness and leave – the formal improvement plan was extended to end on 17 September.
• On 1 October the claimant was dismissed. His appeal was rejected by Tarrant Steele on 3 December 2010.

The conduct of the process – extensively documented -shows that HR managers are complicit in the victimisation of staff. As Dame Janet observed such evidence is usually difficult to obtain.

Fear was the Respect at Work Review’s second theme: fear of complaining, fear of reprisal, fear of losing your job, fear of getting a reputation as a trouble-maker, fear of not being promoted if an employee or of not being used again if a freelancer. My Report is also littered with examples of all of these problems emanating from the 1970s and 1980s and one witness to whom I spoke (who I will not name) said that it was a “melancholy fact” that nobody who ever criticised the BBC remained in the BBC.  I note in particular the Respect at Work Review’s finding that there was a common perception that the Human Resources Department ‘worked for management’ and did not provide support for employees who wanted to make a complaint or raise a concern. The perception was that, if a complaint or concern was raised, it would give rise to a ‘black mark’ against the person’s name.  The evidence I received was to the same effect. The Respect at Work Review noted that witnesses were anxious to secure a promise of anonymity before they were prepared to speak to it. I noted a similar concern. Whilst the fact that most of the people who came forward voluntarily to speak to the Savile investigation were former employees was to be expected (given the period during which Savile worked at the BBC), it was nonetheless noteworthy that very few current employees offered their evidence.

Maistry v BBC illustrates how ‘HR works for management’ and against staff. Formal capability proceedings were instituted by the claimant’s manager, Jonathan Aspinwall, in April 2008. Asked to identify  the performance issues, HR manager, Graham Poole  replied:

Issues regarding Devan’s performance were raised during his appraisal last year. However, Devan’s write-up of the appraisal conversation failed to adequately capture the nature and scope of the performance issues which had been discussed and an agreed appraisal was never completed despite repeated requests from Devan’s line manager. After a number of emails Jonathan Aspinwall initiated a series of informal conversations about areas which required improvement.

Although he could not identify the performance issues, Mr Poole scheduled a formal capability meeting to implement a four-week work improvement plan. At the meeting the claimant produced the completed appraisal submitted six months earlier. He said that the union agreement requires informal efforts be made to resolve performance issues before moving to a formal process. There had actually been no informal process and it would be wrong to implement an improvement plan which was part of a formal process. Mr Poole responded by cynically introducing his improvement plan as part of an informal process.

The work improvement plan was based on the job-specification and improvement was to be achieved through feed-back from Mr Aspinwall. Essentially the claimant was being re-interviewed by his line-manager for a post to which he had been transferred. Unsurprisingly the plan provided a forum for spurious claims of poor performance, vicious bullying and harassment.

Genuine concerns about performance – if any –  could have been addressed by resort to the BBC’s formidable array of training resources. This possibility was ignored over the next two and a half years. Patently improving performance was never the objective.

By way of example Ms Butt deceptively claimed she had implemented a formal four-week improvement plan early in 2010. She had been away from the office or otherwise engaged for most of this period. There were no feedback notes or supporting documentation. Despite these troubling facts HR manager Rachel Avenell insisted the plan had  been implemented sometime between January 6 and March 5.

Specific performance failures were belatedly identified for the first time in November 2009  following a six week improvement plan. The claimant’s detailed response refuting the allegations was ignored. Kevin Silverton said:

It is important for management to communicate performance concerns with individuals by referring to specific examples. These specific examples are not necessarily exhaustive; they merely demonstrate the issues that underpin the performance concerns.  Taking this into account, I do not believe it would be appropriate or reasonable to investigate the validity of each specific concern, however on the balance of probability, I believe there is sufficient evidence to suggest that concerns in relation to your capability to undertake the role of an SBJ are justified.

In short it is enough for managers to sling mud. The claimant was held responsible for an allegedly libellous comment made ‘on-air’ in July 2007 when he was neither in the studio or the building. Protecting the confidentiality of sources was regarded as a flaw. Performance lapses cited in his letter of dismissal in October 2010  included failing to attend a training course after he had been sacked and forwarding press releases about the London Film Festival to colleagues. None of these bizarre allegations – or the context in which they surfaced -were examined before the claimant was dismissed.

Tarrant Steele – who heard the claimant’s appeal against dismissal – said he was “surprised that Devan’s performance issues were very basic, and issues that an entry level person should have been able to do, such as editing a package.”  This was contradicted by the BBC’s written admission that it had been broadcasting substantial documentaries produced and presented by the claimant. It was put to Mr Steele that producers would be concerned about working in studios where the BBC Values were breached and guests abused. He said he was not a journalist and only knew that the BBC Values were printed on the back of his identity card.

The question related to the treatment of guests by presenter Sonia Deol. The tribunal read a letter in which Ms Nasreen Rajabali complained that she and her colleague had been humiliated by Ms Deol. Ms Rajabali said she had never been so rudely treated in 30 years of working with different people and organisations. Ms Deol was unrepentant. She said Ms Butt had agreed she was not to blame as she had been poorly briefed by the claimant. This was not unusual. Ms Butt had also condoned Ms Deol’s bullying of the claimant.

Dame Janet found that treating ‘the talent’ as more valuable than the BBC Values had contributed to sexual abuse by Savile. But clearly presenters can also be groomed by ambitious managers. Six years earlier the claimant had warned Vijay Sharma, the editor of the Asian Network, that the indulgence of presenters by senior managers undermined studio discipline, spawned arrogance and eroded the authority of producers.

The claimant’s complaints of victimisation and abuse made at capability, grievance and appeal hearings were also completely ignored. In 2009 he separately raised a formal complaint about bullying and harassment with HR Direct. He was told that his concerns, current and urgent, had been investigated a year earlier. The helplines are window dressing. One service provider could only speak to the claimant if he was suicidal. Another said it discouraged personal consultations to prevent global warming.

The claimant could call no witnesses for fear of reprisal. He was further isolated by the reluctance of the NUJ to defend breaches of its capability agreement with the BBC. The claimant’s representative – seconded to the NUJ by the BBC – openly sided with management. There is every reason to believe this cosy relationship contributes to repression at the corporation.

The claimant concluded his submission to the grievance hearing in September 2008 saying:

I have always been proud of my loyalty to the programs on which I have worked. If as I suspect there is an ongoing effort to marginalize and victimize journalists, and especially within a department in which we are trying to nurture ethnic talent, our concern must immediately include the impact this will have on the Network. Journalists who are afraid to think independently are unlikely to foster the high standards of objective reporting on which the reputation of the BBC has been built. There is also the grave risk of evolving a second-class culture in which such conduct becomes acceptable.

The tribunal heard that concerns about the claimant’s performance were first raised at the Network’s board meetings in late 2005. Mr Husain Husaini described this period of ‘transformation’ in his witness statement.

In 2005, the Asian Network changed its editorial direction. Bob Shennan became Controller and the Asian Network came under the remit of the radio station 5 Live. The strategy for the Asian Network was to use some of the learnings of 5 Live and their strategy to target a younger audience. We consulted with staff on this, and there was a range of views on the Network’s decision to do this; however, it was expected that all staff, including the journalists, work to the strategy decided upon…As part of the strategy in 2005, we were trying to make our programmes appeal to our listeners. Research showed that they were not news focused, or typical Radio 4 listeners or interested in broadsheets, but more likely to have busy lives and to read a paper like the Sun or even not read a paper at all. In line with this strategy, all journalists were encouraged to look for stories in tabloids and not just papers like the Independent or Guardian…Asian Network was changed to be modelled more closely on 5 Live and Radio 1 Newsbeat, embracing a younger, entertainment focused audience and focusing on stories with relevance…Unfortunately, this strategy was not as successful as hoped. Audience figures improved and then fell..

It was then decided to change tack and aim “for a warmer more inclusive tone that suited Asian families.” In her witness statement Ms Butt gave some idea of how this translated.

 I do recall that when I told him (the claimant) he was responsible for setting up the “Niki meets” feature, he suggested Girish Kasaravalli. I had not heard of this person and neither had any of the team and therefore I did not think he was appropriate. We would not use a person that we had not heard of and we will ask around the team to see if anybody is aware of them to gauge whether we should use them. The same applied for the second suggestion, Mandip Singh Soin. Both these guests were suited for specialised audiences and were not all encompassing for our audiences. The guests that were within our remit were those that were for the mass audience i.e. across all communities and popular. The remit of the target audience at that time was “friend of the family” and therefore they had to appeal to all generations. As we felt that the team was a cross section for the Asian audience, we felt that if we did not know who the person was, from an editorial perspective we did not think that that the audience would be interested.”

This is ethnic programming at its most patronising. But it also part of a larger process. In his skeleton argument the claimant said:.

The public broadcaster does not exist in a vacuum. Professor Georgina Born, in her landmark study Uncertain Vision: Birt, Dyke and the Reinvention of the BBC’ (2005) describes the crisis that unfolded as the tenets of neoliberalism coalesced into a new common sense, and the language and practice of freemarket economics colonised the heart of public life. Brand-thinking impacted on the embedded ethos of the BBC; public purpose became a facet of strategy and marketing. Efficiency, markets, value for money, audit and accountability became dominant concerns as ends in themselves. There is clearly tension between a new managerial model and the embedded ethos of the BBC which requires creative resolution. The problem as Professor Born observes is that “the development of marketing and branding required some of the guiding values of BBC services were made explicit in a way they had not previously been… When used punitively to batten down and curtail the particular and expansive imaginative engagement required by good programme making, marketing and branding were revealed in all their bathos as a wholly different order of ‘creativity’. Productive in their place, the problem was that they were wielded by the new layers of management intent on justifying their existence and augmenting their influence and powers within the organisation.”

In his closing submission the claimant said:

BBC values are the bedrock of its embedded ethos. They define the Corporation and empower its producers with the creative responsibility to meet its public service remit. It is the Claimant’s submission that, even in pursuit of a more youthful market, management was obliged to honour unconditionally its commitment to these values and the Corporation’s public purpose. It needed to resolve its dilemma creatively rather than victimise, discriminate against and harass its critics.

Instead of reviewing the power to dismiss wielded by even the most inexperienced of junior managers the BBC chose to shoot the messenger.