E-mail from BIHR submissions: Evidence for Human Rights Check UK
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Human Rights Check UK Team
British Institute of Human Rights
Sent: 14 May 2016 14:03
To: BIHR submissions
Subject: Evidence for Human Rights Check UK
- What human rights issues are of concern to you and your organisation?
You may want to include information on how the issues came about, when the issues were of concern or whether they are still of concern, and who was affected. You may also want to include information on any obstacles or challenges you and your organisation faced in dealing with these issues.
The issues relate to freedom of belief (thought and conscience) and the right to a fair trial.
Freedom of belief
The Equalities Act 2010 makes provision for the protection of serious ‘philosophical beliefs’. A philosophical belief must meet the criteria set-out in Grainger v Nicholson  and be genuinely held. However, a Court of Appeal judgment (Maistry v BBC  EWCA Civ 1116 A2/2013/3785) suggests the legislation is flawed and the UK is in breach of its obligation under Article 1 of the European Convention on Human Rights.
EJ Pauline Hughes applied the criteria in Nicholson and found a belief in the BBC Values, which all employees must follow, amounted to a philosophical belief in the higher purpose of public service broadcasting. She rejected the BBC’s argument that the Values were no more than a mission statement (something to aspire to rather than a belief) -Judgment 29 March 2011 (Maistry v BBC 1313142/2010).
A year later this finding was overturned. In her judgment of 4 April 2012, EJ Hilary Harding records the following finding of fact.
“7.8 Like many corporate organizations the BBC has a set of values, or a mission statement, which it publishes, and expects its employees to follow. These values are as follows. Trust- the BBC is independent, impartial and honest. Audiences –are at the heart of what the BBC does. Quality- the BBC takes pride in delivering quality and value for money. Creativity – is the lifeblood of the BBC. Respect – each other and celebrate diversity so everyone can give their best and Working together – one BBC where great things happen.”
In her conclusions at paragraph 28 she adds:
“That these were the BBC values was not challenged by the claimant and it seems to us therefore that the BBC Values are distinct from the belief which the claimant holds in the higher purpose of public service broadcasting, which has been found to be a protected belief.”
Judge Harding did not apply the criteria in Nicholson and the reasoning is entirely circular. The Tribunal has also edited the statement of values. It should actually read:
“.Trust is the foundation of the BBC: we are independent, impartial and honest. Audiences are at the heart of everything we do. We take pride in delivering quality and value for money. Creativity is the lifeblood of our organisation. We respect each other and celebrate our diversity so everyone can give their best. We are one BBC: great things happen when we work together.”
The vital pronouns “we” and “our” have been excised and replaced by “BBC”. The cardinal principle, “Trust is the foundation of the BBC” also goes. A collective and individual pledge of loyalty to the Values has been transformed into an impersonal corporate statement. The sole piece of evidence on which the tribunal relies to reach a decisive finding has been tainted.
In July 2013, responding to an application to admit new evidence, Judge Harding clarified her finding. She said:
“For the avoidance of doubt E J Hughes at the Pre-Hearing Review found that the claimant did have a protected philosophical belief –namely a belief in the higher purpose of public service broadcasting and that when he referred to “BBC Values” this is what he meant. E J Harding’s tribunal, whilst acknowledging the claimant’s protected philosophical belief, found as a fact that the respondent’s witnesses understood the term to mean something different – namely the term referred to the BBC’s mission statement, known as the BBC Values, which emphasized the importance of certain matters such as Respect and Trust.”
In short she had not found the BBC Values are a mission statement but that the BBC witnesses thought the Values were a mission statement.
Remarkably none of the witnesses used the term ‘mission statement’ in their witness statements. They said they could not have discriminated as they could not have known of the claimant’s belief. The claimant responded in his skeleton argument submitted at the beginning of the trial.
He said that all BBC employees were required to adhere to the BBC Values which exist to promote the BBC’s public purposes. The BBC could not therefore claim to be ignorant of a belief which it encouraged. Ignoring this written submission – and cross examination confirming the witnesses believed in the BBC Values – Judge Harding found the claimant had failed to challenge the witnesses’ assertion that they were unaware of his belief. She therefore drew an adverse inference against the claimant’s credibility completely undermining his evidence.
The claimant’s argument was finally addressed by the Court of Appeal in July 2014. Lord Justice Underhill said:
“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.”
This, Lord Justice Underhill said, was what Judge Harding had in mind. It conflicts with the facts. Judge Harding found at first that the BBC managers could not have discriminated because the Values were a mission statement and not a philosophical belief. Later she explained she had found the managers could not have discriminated because they believed the values were a mission statement. Lord Justice Underhill by contrast accepts that senior employees can be assumed to subscribe to the BBC Values.
Lord Justice Underhill says the BBC required knowledge of the claimant’s ‘philosophical belief’ in order to discriminate. That the BBC expects employees to follow the Values does not suffice.
A philosophical belief must meet the criteria set-out in Grainger v Nicholson  and be genuinely held. This can only be determined by a tribunal. Until then – as the judgment confirms – any alleged discriminator can claim ignorance of a philosophical belief as a complete defence. Claimants have established philosophical beliefs in a spate of cases. If the Court of Appeal is correct both claimants and the courts have been engaged in an entirely pointless enterprise.
Claimants can also be penalized unfairly. Having determined the claimant held a philosophical belief, Judge Hughes ruled the claim could proceed and allocated some 20 days for the hearing. Judge Harding found the claim had been misconceived from the outset and awarded the BBC costs of £10,000, the maximum permissible at the time.
The right to a fair trial
In 2013, while Maistry v BBC was on appeal, the BBC published its Respect at Work Review which promised a renewed commitment to the BBC’s values and ethos. Endorsing the Review the Management Board said, “the BBC must be an organisation which lives and breathes its values.” The Review said:
“The BBC Values are widely disseminated and published on our internal and external websites. They are printed on the back of most BBC identity cards. They represent a distillation of the essential mission and vision of the BBC and should be at the heart of everything the BBC does, and the way in which it conducts itself…The BBC is an organization which inspires a strong affiliation from the majority of people working with it. The BBC mission is often a personally shared endeavour and it is a cause for real pride to be part of it. Our staff and managers believe strongly in the BBC Values and are committed to trying to make the BBC a good place to work.”
These statements completely undermined the BBC’s claim that its values were no more than a mission statement. Judge Harding refused an application to admit this new evidence saying it was not in the interests of justice to do so more than a year after her judgment was promulgated. She also considered the new evidence irrelevant.
The BBC continues to publicly contradict the evidence it gave in court. Director General Lord Tony Hall says he is building a simpler BBC “where the values that all of us who work here believe in – are the values we live, day by day. And where everyone feels able to speak truth to power.” Chairman of the BBC Trust, Rona Fairhead says “We need to restore the public’s trust in the BBC. We need to demonstrate – through our actions – that the BBC’s values are for everyone and non-negotiable.”
A fair trial requires that the evidence and the submissions of the parties are properly considered, the law is applied and applied consistently, findings are based on evidence, intelligible and adequate reasons are given for conclusions and the principle of legal certainty observed. The applicant drew attention to breaches of all these procedural standards in an application to the European Court of Human Rights.
The judgment of Judge Hughes on which the claimant relied was rejected by Judge Harding who imposed the finding of her tribunal, a finding she later modified. Lord Justice Underhill effectively found the applicant had no case to begin with as knowledge of a philosophical belief is required for discrimination to be possible. He therefore dismissed all the applicant’s grounds of appeal as largely irrelevant.
His reasoning conflicts with that of Judge Harding which conflicts with that of Judge Hughes. It also conflicts with the EAT judgment of Lady Stacey and the reasoning of Lord Justice Clarke (Court of Appeal) who upheld Judge Harding’s judgment.
The law was applied selectively to the detriment of the applicant. Judge Harding did not apply Nicholson and the respondent suffered no adverse inference for failing to challenge the claimant’s assertion that the BBC itself encourages a belief in its higher purpose. Crucial submissions made by the applicant were ignored. The evidence was not properly examined – the statement of Values was altered and misrepresented by the tribunal; findings were made unsupported by evidence defeating the purpose of a trial; claims that the witnesses did not make were found to be fact, without any supporting evidence and a key BBC witness was allowed to amend his witness statement after the claimant had shown it was seriously flawed.
The Employment Tribunal gave irrational and unintelligible reasons for its findings. The Employment Appeal Tribunal casually dismissed persuasive points of law as just an attack on Judge Harding’s findings of fact. In short the applicant’s case was decided arbitrarily and capriciously.
The conduct of Maistry v BBC is alarming in itself. But it seems to be part of a larger problem. Commenting on a case heard in 2011 at Southwark Crown Court in London, James Richardson, editor of Archbold, said it illustrated the depths to which the Court of Appeal had sunk. The court was more concerned about outcomes than procedure.
“The upshot is that a court of three senior judges failed to notice that far from being in prison, the defendant should have been set free. If this is the standard to be expected, then it is no wonder that things are going wrong on a massive scale lower down in the hierarchy…Procedural lapses are indulged by the courts. The more they are indulged the more they occur; the more they occur the more they need to be indulged…This downward spiral has culminated in Anthony White’s case passing through the hands of five judges and at least as many lawyers without any of them noticing it was devoid of legal foundation; or if they did, without seeking to put it on a proper legal foundation.”
Maistry v BBC was considered by nine judges before Lord Justice Underhill identified the loophole in the law.
The claimant was advised – by an eminent legal firm – not to pursue his claim as “case hardened judges are not interested in the facts.” He chose to proceed as this seemed unbelievable in England. In hindsight the advice was sound.
Lawyers are also inclined to believe that almost any action taken by an employer is likely to be considered reasonable. By way of illustration the BBC claimed it dismissed the claimant after 14 years because he had not acquired entry level skills like editing a simple package. But the BBC itself contradicted this claim. It admitted in writing that it had been broadcasting substantial documentaries produced and presented by the claimant.
The BBC also gave quite bizarre reasons for dismissing the claimant. By way of example, he had demonstrated incompetence by forwarding press releases to colleagues and failing to attend a training session a month after he was sacked.
As tribunals are solely responsible for findings of fact it was possible to simply ignore this and other significant evidence. This is a structural problem. In Maistry v BBC it allowed the tribunal to shape the respondent’s case. This monopoly of the facts also undermines the scrutiny provided by higher courts and encourages the dismissal of points of law as an attack on findings of fact.
- What steps have been taken since to improve the situation?
Leave to approach the Supreme Court was denied. Application was therefore made to the European Court of Human Rights to remedy violations of Articles 9 and 6 of the European Convention on Human Rights and to redress a breach of the UK’s treaty obligations under Article1.The application was dismissed and no reasons are required to be given. Despite the most strenuous efforts the claimant has not been able to attract any attention to the issue from the human rights community. Justice Underhill’s judgment was not considered in an Oxford Brookes review (October 2015) of the equality legislation relating to religion and belief commissioned by the Equality and Human Rights Commission. However, Peter Edge, one of the authors of the report, says they are awaiting a decision which properly engages with the issues raised by Maistry v BBC at appellate level.
- What do you think the government should be doing on this issue? This includes the UK government, the Scottish and Welsh government if relevant, and any other public bodies such as local authorities or the police.
The government should review the legislation in the light of the Court of Appeal decision. If – as in the case of the BBC – knowledge of a philosophical belief is required for discrimination to be possible, no claimant will be able to prove discrimination on the grounds of belief under the law as it stands.
- If you could tell the government one thing about human rights, what would it be?
The protection of serious rational beliefs is vital when a handful of powerful corporations control the media and critically influence public opinion. The BBC was created to provide space for a more balanced exchange of ideas. Yet two recent reports by Dame Janet Smith and Dinah Rose QC have found a culture of fear prevails at the public broadcaster. It is remarkable that employees are intimidated by the threat of victimisation and dismissal at the BBC whose public purposes include sustaining citizenship and civil society. Quite plainly this can only breed cynicism and undermine efforts to promote a sensitive human rights culture.
- Your Details
Your Name: Devan Maistry
Your Organisation: Individual response.
Contact E-mail Address:
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