Baroness Chakrabarti – 5 December 2016

5 December 2016
The Right Honourable Baroness Chakrabarti

I write again in case you missed my previous emails. Please let me know if you are able to help.

Devan Maistry

———- Original Message ———-
To: contactholmember <>
Date: 31 October 2016 at 12:42
Subject: Human Rights (Maistry v BBC)

Baroness Chakrabarti
I am resending my letter of 1 October 2016 and the submission made to Human Rights Check just in case it has been overlooked or misplaced.

Yours sincerely
Devan Maistry

Baroness Chakrabarti

Thank you for forthrightly voicing your disapproval of Jeremy Corbyn’s cowardly treatment by politicians and hacks. Two reports about bullying at the BBC – and a mass of anecdotal evidence -suggest many of us are now being mugged in broad daylight and in cold blood, albeit more surreptitiously. The growing support for Jeremy reflects, not least, concern about the new normal in which decency has been displaced by hypocrisy and spin.

I have been trying to clarify whether the UK is in breach of a treaty obligation imposed by the European Convention on Human Rights by failing to provide adequate protection for freedom of thought and conscience in the workplace.

Philosophical beliefs attract protection under the Equalities Act 2010. In Maistry v BBC a belief in BBC Values was found to be a philosophical belief (EJ Pauline Hughes 29 March 2011 Case No: 1313142/2010). However Lord Justice Underhill’s judgment in Maistry v BBC [2014] EWCA Civ 1116 (9 July 2014) suggests establishing a philosophical belief is quite pointless.

As I understand it, Lord Justice Underhill is saying that for discrimination to be possible mere knowledge of the relevant belief does not suffice. The alleged discriminator must be aware that such a belief is held as a philosophical belief. This however can only be established under cross-examination by a tribunal. Until then any alleged discriminator can simply claim to be unaware of a philosophical belief. If this Court of Appeal decision is followed claimants would have to prove what is impossible; that at the relevant time the alleged discriminator had knowledge of a philosophical belief.

Here is the crucial passage from the judgment.

“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.”

Some may regard Lord Justice Underhill’s argument itself as patronising and discriminatory. More urgently despite the increasing focus on human rights I have been unable to raise any interest in what appears to be a flaw in the legislation or its interpretation. I should mention that the judgment barred any appeal to the Supreme Court and that my application was swiftly dismissed by the European Court of Human Rights. A review of the relevant legislation undertaken by Oxford Brookes University for the Equality and Human Rights Commission omitted consideration of Lord Justice Underhill’s judgment. However, Professor Peter Edge, one of the authors of the report said: “I think we are still awaiting a decision which properly engages with the issues raised by your case at appellate level, but suspect it will come!”

I spoke to my MP Khalid Mahmood but have not received any response. Further emails have been ignored. The Labour Campaign for Human Rights says the case “falls outside the remit of the campaigns we are currently working on.”

I responded to the call for evidence by Human Rights Check for its Joint Civil Society Report to the UN Periodic Review. Unfortunately, the Report includes no reference to my complaints. Or my suggestion that entrusting tribunals with a monopoly of the fact finding mission is encouraging capricious and arbitrary decisions.

I attach my submission to Human Rights Check to provide an overview of Maistry v BBC which I believe provides valuable insight into the pervasive abuse of power that is now a disturbing feature of our society.

I blog at much of the relevant documentation is filed under ‘A Case Note’.

It is quite remarkable what happens in broad daylight in Britain. I say that with some experience of resisting apartheid in South Africa at considerable personal cost.

Best wishes

Devan Maistry