Maistry v BBC

Britain’s conduct in world affairs is justified by precious values of democracy, the rule of law and a sense of fairness and tolerance peculiarly innate to the nation. This is a society whose lower orders can only be grateful for the high ideals espoused by their betters.

Maistry v BBC, a dispute between a journalist and the UK’s  prestigious public broadcaster questions this smug narrative. That the case has gone largely unreported suggests there is still ample space for cowardice and hypocrisy.

The BBC claims the highest ethical principles and editorial standards, a halo it markets relentlessly, home and away. But it has declared in court these assertions of principle are really no more than a mission statement; corporate froth to enhance its image. This is rich considering the BBC insists employees follow these values.

Outside the closet of the court room, the Corporation, funded by the taxpayer, continues to proclaim its values as sacrosanct and hoodwink the public. The BBC’s Director General has been informed of the situation but has chosen to remain silent.

There are other troubling issues and the case deserves serious reporting, all the more as an application to the European Court of Human Rights was swiftly dismissed and no reasons for the decision will be forthcoming.

Chronology

Legal proceedings in Maistry v BBC were initiated after I was dismissed in October 2010 following a capability process lasting more than three years. The BBC claimed it dismissed me for poor performance. I argued the real reason was that I was loyal to the BBC Values the Corporation insists all employees adhere to, believe in and apply.

In March 2011 following a Pre-hearing Review, Employment Judge Pauline Hughes  held that a belief in the BBC Values – a belief in the higher purpose of public service broadcasting – attracted protection in law. She ruled that a claim of discrimination on the grounds of belief could proceed to trial. She rejected the BBC’s claim that its Values amounted to a mission statement.

Judge Hilary Harding presided at the month-long liability trial in February 2012. Contrary to Judge Hughes she found the BBC Values were a mission statement unrelated to the BBC’s higher purpose. This finding essentially decided the case.

In August 2012 the BBC brought a claim for costs. It alleged I  had acted maliciously by bringing proceedings after being warned the BBC could not have known I believed the Corporation served a higher purpose. Judge Harding duly awarded the BBC the maximum costs of £10,000 and the BBC obtained a writ of execution.

Four applications to appeal against the liability and costs judgments were refused. In October 2013 Lady Stacey heard argument on both matters in the Employment Appeal Tribunal. In December she dismissed the application but allowed a further approach to the Court of Appeal. The matter was finally heard by Lord Justice Underhill. He refused permission to appeal or to apply to the Supreme Court.

An application was lodged with the European Court of Human Rights on 23 October 2014. This was dismissed on 11 December, 2014. The decision was communicated to the applicant on December 31, 2014.

Overview

Maistry v BBC raises serious questions about whether the public broadcaster has in fact been hijacked. Here’s a passage from my opening argument at the trial in February 2012.

“The public broadcaster does not exist in a vacuum. Professor Georgina Born, in her landmark study of the BBC  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 May 2013 as Maistry v BBC became mired in the appeal process, the BBC proceeded to do exactly what Professor Born had suggested several years earlier – draw the line between BBC Values and the sex appeal of an amoral economy that was turning management heads. With the help of Dinah Rose QC the BBC published its 60 page ‘Respect at Work Review’. It promised a glorious renaissance of the Values that were once the bedrock of the BBC’s ethos. From now on the Corporation would once again “live and breathe its Values.”

But of course this sudden  concern about values  breathlessly followed the Jimmy Savile sex-scandal which had convulsed the Corporation. In Maistry v BBC the BBC continued to swear the Values were no more than a  corporate mission statement. Inexplicably despite the strongest evidence to the contrary from the BBC itself the courts required little persuading or indeed any evidence to believe this line of defence.

Here’s how Judge Pauline Hughes summarised the BBC’s argument in her judgment of 29 March 2011:

“It was the respondent’s case that the legislation could not have been intended to cover a belief of this nature because really it was no more than a “mission statement” i.e. a goal to aspire to, rather than a belief. The respondent’s representative argued that if the claimant was right, then it would follow that beliefs in the aims and values of a whole host of public organisations, if genuinely held, could amount to philosophical beliefs. By way of example, the respondent suggested that a belief that the aim of the NHS should first and foremost be to look after the health and welfare of its patients could, if the claimant were correct, amount to belief for the purposes of the 2003 Regulations, but it would be absurd for that to be the case. In oral submissions, the respondent’s representative went further, and suggested that if the claimant was correct to assert that he held a philosophical belief, this could extend the protection of the 2003 Regulations to employees of private commercial concerns who could seek to argue that they believed in their employer’s mission statement.”

Judge Hughes rejected this argument:

” I accepted that while the public purposes set out in the Royal Charter and Agreement might fairly be characterised as idealistic in nature and/or as a ‘mission statement’, that does not negate the fact that the evidence before me was that those purposes arise because of a shared belief in the importance of public service broadcasting in a democratic society. I accepted that the claimant was right to argue that neither the 2003 Regulations nor Nicholson provide authority for the proposition that the public aims of an organisation cannot amount to a philosophical belief if those aims are the result of an underlying philosophical belief. It is worth noting that the aims include ‘sustaining citizenship and civil society, promoting education and learning and stimulating creativity and cultural excellence’. Those are weighty and substantial aspects of human life and behaviour.”

That the BBC should seek not only to traduce its own values but that of the NHS, and that subsequent Tribunals have enthusiastically contradicted Judge Hughes, makes Maistry v BBC an important case study. There are other questions. The Court of Appeal judgment (9-07-2014) suggests there is no real protection of freedom of thought and conscience and that the UK is in breach of its treaty obligations. As appeal to the Supreme Court is blocked there seems no way of resolving the matter.

A number of documents are available from the drop-down menu. A useful overview is provided in the ECHR Application (October 2014).

Roadmap

A lengthy and intense bruising at the hands of ‘democratic’ institutions produces more than casual observations. The quality of judicial reasoning I have encountered is alarming and needs serious explanation. I am hopeful that a jury of my peers will voice an opinion, perhaps even journalists and lawyers. Yes this is unashamedly about putting the case to the people in the absence of any alternative. And of course drawing conclusions. Here are some of the key passages and documents.

Written submissions (28-02-2012)

Some idea of the attrition experienced at the BBC preceding the case is provided in these closing remarks made at the trial in 2012.

The Pre-hearing Review ( Judge Pauline Hughes, February 2011)

The UK acknowledges the right to freedom of thought and conscience.  Legal protection is afforded to ‘philosophical beliefs’ which meet a test for cogency and seriousness set out in the famous global warming case, Grainger PLC v Nicholson (2010).  I claimed the real reason for my dismissal was that I believed in the BBC’s Values which expressed the higher purpose of the Corporation. Judge Pauline Hughes found that such a belief amounted to a ‘philosophical belief’ protected in law and rejected the BBC’s claim that its values were no more than a mission statement rather than a belief.

The Case (Skeleton Argument: 02-02-2012)

I gave clear notice of my argument and the cases I relied on in support. In particular I argued that the BBC managers could not claim ignorance of a belief the BBC itself encouraged.

The Trial (Judge Hilary Harding, February 2012) 

Judge Harding found the BBC Values were a mission statement. She also found I had failed to challenge the BBC’s claim that it could not have known of my belief in the BBC’s higher purpose. She therefore drew an adverse inference against my credibility which swept away all evidence in my favour.

Application for a review of the judgment (Judge Harding 3-07-2013)

An application to review the judgment on the basis of new evidence – statements made and endorsed by the BBC Management Board – was refused by Judge Harding. These statements confirmed the  BBC Values epitomised the Corporation’s higher purpose and that managers and staff strongly believed in the Values. This proved my case.

Rejection of new evidence (22-07-2013)

Judge Harding ruled the statements of the Management Board were irrelevant. The reasoning is quite remarkable. But she confirms that the BBC managers held a view of the values quite different from that held by the BBC , the Management Board, and me.

Judgment(Lady Stacey) 5 December 2013

Decisions of Employment Tribunals cannot  be appealed on the basis that they got the facts wrong. Streamlining access to justice for the poor demands certain compromises. You must therefore only raise complaints relating to how the law was applied or misinterpreted. If there is any compensation for arduous litigation it is the privilege of learning how the finest legal minds approach and resolve these problems. It is something we all pay for and  should expect. Judge Stacey dismisses 9 points of law in two lines without saying a word about their merits or deficiencies.

Judgment- Lord Justice  Underhill (Court of Appeal  9 July 2014)

My view of the judgment is that it suggests Britain is in breach of its treaty obligations by failing to ensure freedom of thought and conscience. If Lord Justice Underhill’s decision is followed journalists will be required to prove the impossible to secure protection of freedom of thought and conscience under the law. They would have to show that an employer was aware they held a philosophical belief at the relevant time although such a belief can only be established by a tribunal subsequently.

Here is the relevant paragraph:

“13. The Applicant’s essential answer, as I have said, is that it was impossible that the individuals in question could have been unaware of his belief in BBC values given that they are pervasive in the BBC, and perhaps also because he had, in the case of the disputes which gave rise to the acts of complaint or acts complained of, referred to those values, as the Tribunal acknowledged in the passage that I have read. But I am afraid to say that I do not believe that it is arguable that a generalised assumption that senior management employees will subscribe to BBC values can be equated with the knowledge that a particular employee has a philosophical belief in those values. That is not the same thing. The fact that to the applicant those values constituted a belief with similar status and cogency to a religious belief does not mean that will be so in every case. To others it might indeed be no more than their employer’s mission statement about the values that they were expected to observe at work.”

Justice Underhill ignores a judgment that rejects the BBC’s argument that its values should be regarded as a mission statement, part of a corporate public relations exercise not to be taken seriously. Even more remarkable is the notion that only senior managers can be assumed to subscribe to the BBC Values and that no such presumption of nobility attaches to ordinary employees.