In the Birmingham Employment Tribunal Case Number: 1313142/2010
Between Mr D Maistry and British Broadcasting Corporation
Grounds of Appeal
This appeal is against the judgment of the Birmingham Employment Tribunal, in the case of Maistry v BBC, handed down on 4th April 2012, and dismissing all the Claimant’s complaints of unfair dismissal, harassment and discrimination. It is brought on grounds of perversity, bias and points of law. The following particularises these grounds as required.
Some explanation for the scope of this application is in order. The Tribunal’s conclusion that the credibility of the Claimant is poor has significantly affected its consideration of the evidence. At paragraph 21, the Tribunal states, ‘Accordingly we considered there to be serious issues with the claimant’s credibility, and this has underpinned many of the findings of fact that we have made when a dispute of fact occurred.’
The Tribunal’s ‘findings of fact’ are recorded in paragraphs 7.1 to 7.98. Paragraph 7.1 finds the Claimant began work at the Asian Network on 10 September 2001 and his effective date of termination was 1 January 2011. This is the only finding that is agreed between the parties. In 42 of the paragraphs the Tribunal acknowledges disputes of fact. These are all resolved in favour of the Respondent. In the remaining 55 paragraphs the Tribunal accepts the Respondent’s version of events, occasionally with embellishment. The Claimant’s complaints are all dismissed.
This credibility factor has patently encouraged enthusiastic acceptance of the evidence given by the Respondent. The Tribunal’s reluctance to draw adverse inferences when Respondent witnesses fail to support their statements is obvious. Even spectacular contradictions go unremarked. The Tribunal, having discounted the credibility of the Claimant’s evidence at large, is often forced to rely on inference, sometimes circular, to resolve disputes of fact.
The presentation of the Respondent’s testimony as finding conjures away, or renders dormant, disputes of fact where they are not explicitly recognised.
The issue of credibility also relates to the Tribunal’s understanding of what constitutes the formal record of meetings conducted by the Respondent. Established custom and practice at the BBC allows employees to clarify meeting notes sent to them by HR (the notes are not verbatim) to establish an accurate record. The Tribunal’s interpretation is that ‘clarifications’ made by the Claimant should be regarded with caution as they are comments made after the meeting. The Respondent’s statements as recorded are regarded as contemporaneous and therefore more reliable. These enter the judgment as findings while the Claimant is unable to rely on ‘clarifications’ which correct or challenge the meeting notes prepared by HR.
Judge Harding herself remarked at the beginning of the hearing that the Respondent’s skeleton argument largely amounted to denial. This suggests the lack of a cogent case, a suspicion heightened by the Respondent’s strategy of introducing as many new allegations as possible. The Claimant drew attention to this in his supplementary statement. The judgment remains unhelpful in distinguishing extraneous detail.
The result, unsurprisingly, is a judgment whose findings replicate the Respondent’s case. There is a difference however in that the Tribunal has also had to resolve inconsistencies in this case and cull from a welter of evidence marshalled indiscriminately. The record shows the Tribunal – even if inadvertently – comes close to shaping the Respondent’s case.
The Claimant was a highly regarded journalist and manager at the BBC Asian Network. Perceptions of the Claimant changed during an intensive period of consultation through 2005 aimed at transforming the network. In 2006 the Claimant was encouraged to move to Radio 4 and in 2007 was offered an exit package. In April 2008 a formal capability process was started. This was aborted by the Respondent in favour of a fresh start beginning with a review of the Claimant’s performance. In 2009 this new capability process began and in October 2010, after 14 years at the BBC, the Claimant was dismissed.
The only investigation of the performance allegations made against the Claimant was undertaken by senior manager, Tarrant Steele, following the Claimant’s appeal against dismissal. At 7.95 the Tribunal finds, ‘Mr. Steele was of the opinion that the claimant had consistently denied that he had performance issues because he believed that there was nothing for him to improve on…He concluded that there was very little evidence that the claimant had engaged in the process and there was no evidence of the claimant meeting the objectives required of him.’
Mr Steele was clearer in his witness statement (paragraph 39), ‘I 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 precise statement is not included in the judgment. Mr Steele was asked in cross-examination how he could make such an assertion when the BBC had been broadcasting hour-long documentaries produced and presented by the Claimant. He was unable to provide a convincing explanation for his impossible claim. Although this inconsistency was overlooked, the Tribunal has made a number of findings relating to journalism on the basis of the Respondent’s evidence.
Jonathan Aspinwall, the editor of the Breakfast Program, told the Tribunal that following the ‘Gillingham Report’, the BBC introduced a system of ‘bids’ requiring journalists to record conversations with potential guests in a public folder. The ‘Neale Report’ actually focused on the reporting of anonymous sources. Despite the credibility gap, the Tribunal accepted Mr. Aspinwall’s word. It also accepted his notion of non-BBC sources, as in the Blackburn with Darwen Council.
A feature of this dispute is a convoluted capability process spanning three years although its exact length is still indeterminate. In November 2011 the Claimant learned for the first time that the original performance issue was that he ‘was a long way off’ from filling his role. This was discovered within weeks, days or perhaps even before he was transferred to the Breakfast program in May 2007. Formally the Respondent addressed the issue by implementing relatively short work improvement plans designed to allow the Claimant to demonstrate he could meet the job specification. The Tribunal says little about why there is virtually no recourse to the BBC’s formidable training infrastructure. It acknowledges though, that the onus was on the Claimant to proactively identify and organise any training/development opportunities. There is no consideration of how the Claimant was expected to do this while working to instruction.
This dispute has straddled four distinct periods.
November 2001- late 2005
The Claimant was employed as a broadcast journalist at the BBC Asian Network in September 2001. He had previously spent five years at the BBC as a television producer. Until late 2005 his work was highly regarded, reviewed favourably by BBC executives and praised by his editor and colleagues. During 2005 there was intensive consultation with staff as part of a process of transformation of the network. Journalists were encouraged to air their views and the Claimant, as head of the Language programs, contributed to the discussion. In December 2005 a new tier of management was appointed.
Late 2005 to May 2007
Concerns allegedly emerged about the Claimant’s performance in late 2005 at board level meetings. Because of these concerns the Claimant was encouraged to pursue an attachment at Radio 4 in 2006 and subsequently offered an exit package. These performance concerns were not discussed with the Claimant. In May 2007 the Claimant was transferred to the Breakfast program.
May 2007 to April 2009
From the outset Jonathan Aspinwall, the editor of the Breakfast program, felt the Claimant could not fill the role of a senior broadcast journalist. He attempted to get the Claimant to complete an appraisal against the job specification. The Claimant submitted a final appraisal in November 2007. In April 2008 formal capability proceedings were started and a four week improvement plan implemented in June. The Claimant appealed this decision. Andrew Thorman who heard the grievance thought it best that a fresh start be made and recommended the Claimant be reviewed against the job specification. In April 2009 Laura Ellis upheld this decision.
May 2009 to 1 January 2011
Fresh capability proceedings were started in May 2009 and an informal six week work plan was implemented in September/October 2009. Performance failures allegedly identified during this plan led to formal proceedings. A four week formal improvement plan was allegedly implemented in February/March 2010. Performance failures allegedly identified during this plan resulted in a final warning and a new six week improvement plan. This plan was conducted between July and September 2010. Performance failures allegedly identified during this plan led to the Claimant’s dismissal in October with three months’ notice. In December, senior manager, Tarrant Steele, rejected the Claimant’s appeal against dismissal.
At paragraphs 21 and 22 the tribunal gives reasons for excluding much of the evidence of the Claimant. These are the credibility of the Claimant and the Tribunal’s rejection of the clarifications the Claimant added to meeting notes prepared by HR. It also says, although this did not impact on his credibility, it had to pull together the Claimant’s case from an often very confused presentation.
Credibility of the Claimant
The Tribunal says, at paragraph 21, adverse inferences were drawn about the Claimant’s credibility because he failed to put to any of the Respondent’s witnesses, ‘that their actions were in any way influenced by his belief in the higher purpose of public broadcasting’, or his age. This failure was striking because the Claimant was a relatively sophisticated litigant in person but had not, in the five years he allegedly suffered discrimination, made a single complaint to this effect.
(i) Failure to challenge witnesses on the grounds of philosophic belief/age
The expressed view of these witnesses, 11 to be exact, was that they did not, or could not have discriminated. They only learned of the Claimant’s belief after a Tribunal found in February 2011 that he held a philosophical belief as defined by the Employment Equality (Religion and Belief) Regulations 2003. Evidence of discrimination, as legal commentary suggests, is unlikely to be readily available. Little point would have been served in questioning the witnesses about a philosophic belief of which they claimed to be unaware.
In his closing submissions the Claimant said, ‘BBC values are the bedrock of this 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 honor unconditionally its commitment to these values and the Corporation’s public purpose. It needed to resolve its dilemma creatively rather than victimize, discriminate against and harass its critics.’
The BBC’s values inform its work and public purpose. Kevin Silverton, Head of News at the Asian Network, confirmed in cross-examination that commitment to BBC values was not optional and that these included the ethical and editorial standards set out in the BBC’s Producers Guidelines, a public document, as well as the BBC’s public purposes set out in its mission and Charter. He said anyone who sought to become a paragon of BBC values would be encouraged. He said he agreed with Director General Mark Thompson’s belief in the higher purpose of public broadcasting.
The relevant question therefore was whether the actions of the Respondent witnesses reflected a disdain for BBC values and those who refused to compromise these values. It was put to Tarrant Steele, Managing Editor of BBC Radio 1 that a producer had every right to be uneasy about working in a studio where BBC values were ignored. Mr. Steele said, ‘I am not a journalist.’ It is remarkable that a senior executive can claim ignorance of the BBC’s ethical and editorial code.
The Tribunal restricted its consideration of BBC values to the broad brush presentation in the limited space on the back of a BBC pass that was shown to the Tribunal by the Respondent. The Claimant told the Tribunal and Counsel this was ‘just a part of it’. The Tribunal said at paragraph 21, ‘The evidence before us from the respondent was that the BBC values are a mission statement incorporating the following behavioral characteristics; 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. Working together – one BBC where great things happen. 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.’
The BBC publically states its mission to inform, educate and entertain, its vision and its values inform its work and how it promotes its public purposes. In submissions to the Pre-Hearing Review on 14 February 2011, the Claimant cited Professor Georgina Born’s landmark study of the BBC, ‘Uncertain Vision’, at length. Her research revealed that the bedrock of the BBC – even under stress- is a value system which endows producers with the autonomy necessary to shoulder both creative power and responsibility (p.110).
The Tribunal found at paragraph 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.’ At the Pre-Hearing Review the Respondent (paragraph 1, page 258), also argued that BBC values amounted to a mission statement, something employees did not have to necessarily believe in.
At paragraph 18 of the Pre-Hearing Review judgment (page 260,) Judge Hughes says, ‘The BBC has a unique place in our society – it is partly funded by the public and it has public purposes, which set it apart from commercial providers of media services. Whilst I accepted that the public purposes set out in the Royal Charter and Agreement might fairly be characterized 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.’
At paragraph 21 the Tribunal said, ‘Even if, when the claimant referred to the BBC values, he actually meant the higher purpose of public service broadcasting it is noteworthy that nowhere is this set out or explained, particularly given the degree of detail in which the claimant felt able to complain about his treatment.’ The Claimant produced a statement of philosophical belief to the Pre-Hearing Review at the request of Judge Hughes (p.105) and his submissions to the present hearing included the following:
The Respondent is a public broadcaster whose purpose includes sustaining citizenship and civil society, to which end it aims to inform and educate, as well as entertain. This public and democratic responsibility, inspiring creativity and connection, not only makes the BBC special to Britons but hugely influences the outside world’s perception of the nation. BBC values, codified and inscribed on the passes carried by some 21,000 employees, entrench and internalise the BBC’s ethos and purpose.
The tribunal has described the Claimant’s philosophical belief (in short) as a belief in the higher purpose of public broadcasting.
The Respondent itself encourages such a belief. Its mission is to inform, educate and entertain. The first of its public purposes as set out by Royal Charter is to sustain citizenship and civil society. It has an embedded ethos built on BBC values that shape its relationship with the audience, its editorial content and its service of the public interest.
These values include trust, independence, impartiality and honesty, truth and accuracy, and fairness. The BBC’s higher purpose is enshrined in these values, which are explicitly articulated and conscientiously defended.
The Respondent denies that it could have discriminated against the Claimant as his philosophic belief was unknown to the managers involved. However all BBC employees are expected to follow these values.
The Claimant lodged a grievance against the initiation of capability proceedings and the imposition of an improvement plan in June 2008 saying he suspected the major issue was a commitment to BBC values.
(iii) Transforming the Asian Network
Targeting the Youth Market
A striking shift in the Respondent’s perception of the Claimant coincided with a period of intense consultation with staff about the transformation /evolution of the Network. The catalyst was Tim Gardam’s review which identified a need for greater editorial ambition and the introduction of the documentary at the Network, the very changes the Claimant had been advocating for some time. This makes ‘concern’ about the Claimant’s performance even more puzzling.
Ms Sharma suggests that following staff away days and brainstorming sessions a strategy to use more ordinary contributors and voices emerged.
Mr Husaini‘s evidence is that a decision was taken under Bob Shennan ‘to use some of the learning’s of 5Live learning’s to target a younger audience.’ Asian Network staffers were then consulted and there was a range of views. Mr Husaini says that it was expected that all staff, including journalists, would work to the strategy, which clearly had already been decided.
Asian Network was changed to be modelled more closely on 5Live and Radio1 Newsbeat, embracing a younger, entertainment focused audience and focusing on stories with relevance.
Targeting the youth market is an unusual way to encourage greater editorial ambition at a Network with a wider demographic range. It is unsurprising that there was a ‘range of views’ and that questions were asked about a conflict with BBC values and its public service remit. Indeed a primary under-35 target audience was only specified in the BBC Trust’s service licence for the Network in late 2006.
A month after the Claimant’s dismissal an employment tribunal saw fit to comment on the BBC’s marketing strategy. ‘The discrimination was not justified. The wish to appeal to a primetime audience, including younger viewer, is a legitimate aim. However, we do not accept that it has been established that choosing younger presenters is required to appeal to such an audience. It is not a means of achieving that aim; it would not be proportionate to do away with older presenters simply to pander the assumed prejudice of some younger viewers.’ O’Reilly v BBC & Anor 2200423/2010 (ET)
The Claimant believes that the use of younger voices as a marketing strategy may well draw similar comment.
The process was intensely guided by market research. Four listener profiles, Shreeti, Shad, Jas and Mala, were developed to identify ‘target’ stories and guide ‘target’ treatment in line with the new strategy. At an away day the team spent time cutting out pictures from magazines to associate with these profiles.
There was fastidious attention to the age of guests and whether they sounded youthful.
Mr Husaini in his witness statement says the strategy in 2005 was to make our programs appeal to our listeners. Research showed they were not news focused…more likely to read the Sun or not read a paper at all…journalists were encouraged to look for stories in tabloids.
Mr Husaini admits that targeting the youth market was not successful and audience figures fell. It was then decided ‘to aim for a warmer more inclusive tone that suited Asian families.’
Referring to this new strategy Ms Siddhu says ‘we knew the formula and remit required from the market research and listening figures.’
Shooting the messenger
The Claimant was one of those who appealed for a more balanced approach in keeping with the BBC’s public purpose.
His subsequent treatment strongly suggests the Respondent regarded this as obstructive and less than enthusiastic.
Mr Husaini’s remarks about the Claimant being a radical who did not go with the flow support this view.
The Claimant’s previous work, and efforts to encourage more serious journalism, raised questions about his suitability at the new look Asian Network with its more youthful and populist focus. It explains his removal as the producer of Ramadan Reflections despite praise for the series.’
Editor of the Asian Network, Vijay Sharma said in her witness statement (paragraph 1), ‘my role is to evolve and deliver strategic direction to the station.’ She confirmed in cross-examination this would have to conform to BBC values and the corporation’s public service remit.
The Claimant’s approach in cross-examination would be analogous to that of a victim of race discrimination who, instead of seeking an unlikely confession, attempts to establish the perpetrator has a negative or hostile attitude towards people of colour. It is perverse for the Tribunal to conclude, that the Claimant’s focus on BBC values was remote from the issue of his philosophical belief and it is a ground of appeal. It is equally perverse to therefore conclude the Claimant lacked credibility for not-cross examining the witnesses on the issue of belief, and this is also a ground of appeal.
The Tribunal’s finding that the BBC’s set of values was no different to a corporate mission statement conflicts with the decision given by Judge Hughes which was not appealed by the Respondent. It is argued that the Tribunal was only required to establish whether the Claimant had been discriminated against because of his belief. It is a ground of this appeal that the Tribunal misdirected itself in this regard.
At paragraph 21 the Tribunal said, ‘Even if, when the claimant referred to the BBC values, he actually meant the higher purpose of public service broadcasting it is noteworthy that nowhere is this set out or explained, particularly given the degree of detail in which the claimant felt able to complain about his treatment.’
The Tribunal says the Claimant made no effort to explain how BBC values related to the higher purpose of public broadcasting. As seen above the BBC states publically that its values inform its purpose. It is also unthinkable that these consciously nurtured and promoted values are disconnected from the BBC’s purpose. The Respondent’s efforts to trivialise these values is itself supportive of the Claimant’s case. Moreover the Tribunal does not suggest the Claimant’s exposition of BBC values and public purpose, in his statement of philosophic belief and in his submissions, was inadequate. It ignores this evidence. It is a ground of this appeal that in the absence of any explanation, that this is an expression of bias and that it is equally perverse to draw an inference of poor credibility on this basis.
(ii) Failure to complain
At paragraph 21 the Tribunal states, ‘…we considered it noteworthy that during the five years that the claimant said he was subjected to discrimination because of his belief and age, there was not a single complaint made to his employer to this effect.’
In his submissions the Claimant explained that he had been cautious in concluding that he was a victim of discrimination. However in his appeal against a final warning in June 2010 (920) he said, ‘It is a ground of this appeal that I am being discriminated against and that these improvement plans simply provide opportunities for institutionalized bullying and bigotry…It is also a ground of this appeal that this latest plan is maliciously motivated…The allegations made – as I show below – are false, insubstantial and vacuous. It is demoralizing and soul destroying to have to work professionally in a situation where management is constantly on the hunt for anything that can be used against you. It is a ground of this appeal that such treatment is degrading and dehumanizing and amounts to harassment. The above was cited in closing submissions, and the Claimant went on to say, ‘There is indeed some distance between the Claimant’s explicit statement of abuse in June 2010 and the cautious and careful view – expressed in May 2008 – of whether compelling a formal review of his performance was proper or necessary. That difference is simply explained. The claimant’s complaints had been ignored for over two years while he continued to be harassed. A pattern of less favourable treatment had become obvious. The facts overwhelmed any fear of mistake on the part of the claimant, and the risk of stigmatizing the respondent unfairly. This sensitivity is important. Discrimination savages the victim but also discomforts those within shouting distance. The reality of experience also convinced the Claimant, that the font of prejudice was what he had long suspected; the rejection of the very value system that makes the BBC a vital and special space.’
The Tribunal, which also heard this assertion of discrimination during the cross-examination of Mr. Keith Beech, overlooks this as evidence of complaint. It is clear that the Claimant complained specifically about discrimination, amongst much else, and that he carefully considered the gravity of the allegation and its impact before doing so. It is a ground of this appeal that such blatant omission amounts to bias
(iii) Specific Examples
The Tribunal also at paragraph 21, considered the Claimant’s credibility poor because, ‘his evidence was inconsistent and at times very hard to follow. We set our here just a few of the examples of the inconsistency
Refusal to discuss 14 January 2008 email
The first example given by the Tribunal at paragraph 21, is the following, ‘In paragraph 21 of his witness statement the claimant asserted that after Mr. Aspinwall had sent him the 14 January 2008 e-mail, Mr. Aspinwall ‘refused’ to discuss it with him. The claimant subsequently accepted that in fact this was wrong and that what he was actually complaining about was that a couple of meetings had been postponed.’
The paragraph in which the word ‘refused’ appears is the following, in which the Claimant summarises the outcome of his grievance heard by Andrew Thorman on 10 September 2008:
‘Mr Thorman gave his decision on 14th October 2008. He emphasised he had focused on the procedural issues. Although I argued there were no performance issues and submitted proof that I had completed an appraisal he said: ‘It is not disputed that performance issues were raised by Jonathan Aspinwall regarding your work on the Breakfast Show and that there had been difficulty in agreeing your 2007 Appraisal.’ He did not identify the performance issues; he found an informal process had been conducted as required under the agreement but could not say when it began. There was no comment on why Mr. Aspinwall had refused to discuss the 14th January email. He said management was wrong to have reverted to an informal process but recommended an informal review of my performance anyway by my new line Manager, Ms. Neila Butt.’
In written submissions to the grievance hearing (which were read by the Tribunal), the Claimant said;
‘*Two meetings to discuss the contents of this email of January 14 were postponed. One of these meetings was scheduled for April 5. On April 10, I was asked to attend a meeting ostensibly to discuss the January 14 e-mail. At this meeting I was told I would be required to attend a formal capability hearing on April 21.
* Graham Poole now submits that this e mail satisfies the preconditions for a formal capability hearing. He further argues that giving me an opportunity to discuss the e mail was not necessary even though formally promised and what is relevant is that the execution of certain SBJ tasks remained unsatisfactory.’
In his witness statement at paragraph 16 the Claimant said, ‘Two meetings to discuss – as promised – the contents of this email of 14th January 2008 were postponed, the first due to a management meeting, and the second on 5th April because Mr Aspinwall was taking a week-end break abroad. On 10th April 2008, Mr Aspinwall asked me to attend a meeting the next day, ostensibly to discuss the January 14th e-mail. At this meeting I was told I would be required to attend a formal capability hearing on 21st April 2008. I told Mr Aspinwall that this was outrageous and further evidence of maltreatment. I pointed out that the editor had completely ignored me at a meeting with the Breakfast team earlier that day. He suggested I complain to HR Manager Mr. Graham Poole. Mr Aspinwall then sent me an email confirming that the formal capability process had started.’
It is absolutely clear that the Claimant was talking about more than the postponement of two meetings. He was talking about the abandonment of any discussion of the email and a move to a formal process; a clear refusal to discuss the email as promised. The Claimant made further efforts to have this email discussed. In his grievance lodged on 8 June 2008 (page 396) he said, ‘I believe my response to these allegations – made largely in an email sent by my manager to me on 14 January 2008 – should be noted and judged honestly and in context. This may be time consuming but I think would provide valuable lessons and help reaffirm our commitment to BBC values – which I suspect may well be the major issue here.’ He also prepared a response to this email for consideration at the grievance hearing so that his views would at least be noted. This was two months after Mr. Aspinwall had left the network. This response to the 14 January email was read by the Tribunal. This email has never been discussed with the Claimant.
It is a ground of appeal that this selective use of evidence amounts to bias.
(b) Appraisal 12 November 2007
At paragraph 21, the Tribunal states, ‘He gave evidence that he emailed Mr. Aspinwall a third version of his appraisal in November 2007 and heard nothing more about the appraisal until April. In cross examination he conceded that Mr. Aspinwall had emailed him about the appraisal on 4 December 2007 and asked to meet with him to discuss it.’
In the 4 December email (page 1312) Mr. Aspinwall says, ‘I need to talk through your appraisal and your current role alongside the SBJ Job specification. You should be at the stage where you are studio editing and leading the team on the late shift. Can we meet between 12 and 1 tomorrow to talk through this.’ The Claimant replied (page 1312), ‘When do you want me to edit?’
At paragraph 14 of his witness statement the Claimant says:
‘On 4 December 2007 Jonathan Aspinwall wrote to me saying he needed to talk through the appraisal and my current role alongside the SBJ Job specification. He said I should be studio editing and I replied offering to do so. We met the next day. The appraisal was not discussed. Instead Mr. Aspinwall told me Ms Vijay Sharma was concerned I was not deputizing, especially as I was being paid an SBJ’s salary. He suggested I consider working at a lower level. I said he should tell Ms Sharma I would edit whenever required.’
This issue requires further consideration. The Claimant has consistently maintained that he sent an updated appraisal to the respondent on 12 November 2007 and hearing nothing further considered the appraisal completed. When the Respondent started formal capability proceedings in 2008, the Claimant’s NUJ representative, Michele Paduano, asked what the performance issues were. HR Manager Graham Poole said in an email of 7 May 2008:
‘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’ (page 1320).
This response was based on an email at page 384 sent to Mr. Poole the same day by Jonathan Aspinwall.
In his witness statement (at paragraph 25 and continuing into 26) Mr. Aspinwall says, ‘I emailed Devan again on 6 November 2007 reminding him to send me the appraisal (page 340). Devan emailed me another copy on the 12 November 2007 at pages 342a to 342d. Again, I emailed Devan on 12 November 2007 (page 341) and 19 November 2007 telling him I needed more information on his appraisal, and that the version he had sent was unsatisfactory and not a record of our conversation. I was still chasing this on 4 December 2007 at page 1312. Devan has alleged that this appraisal was agreed. However it was clear from the above that it was not agreed.’
There is no page reference for the 19 November 2007 email Mr. Aspinwall claims to have sent. However on this date he forwards the Claimant’s appraisal to Ms Sharma asking her, ‘to look through this please and see what you think?’ (page 343).The email at page 341 appears to support Mr. Aspinwall’s assertion that he emailed the Claimant telling him the 12 November version of the appraisal was unsatisfactory. This e-mail read;
They’re going to want more details on all of this. I get uncomplete appraisals sent back. I’ll print off the SBJ job specification and we’re chat on Thursdday – is 11:30 OK with you?’
Mr. Aspinwall confirmed under cross examination that this was his response sent on 12 November 2007, as claimed in his witness statement. It was then put to him that this note is exactly the same as that sent in an email on 30 October 2007 at page 339. The Claimant asked for an explanation for this suspicious document. Mr. Aspinwall changed his evidence and said the note must have been sent to him by the Claimant. He was asked if there was any evidence that he had told the Claimant the appraisal was unsatisfactory. He said he must have sent the Claimant an email. Asked why this email was not in the bundle he said, ‘Well the whole thing is compiled by the legal team. I don’t know why.
Mr. Aspinwall did not say in cross-examination that he had told the Claimant at the meeting on 5 December that the appraisal was unsatisfactory and that he was terminating the process. He said the meeting took place on 4 December. He was taken to his email of 4 December which showed he had requested a meeting for the next day. He said, ‘No we had a meeting on the 4th. But we were meeting regularly, that we would start on one day and carry on to the next. These meetings tended to go on for a while.’ He was taken to the email sent at 13:13pm on the 5th December, as described by the Claimant in his witness statement. This was the e-mail in which the Claimant suggested that BBC values could not be compromised even when reporting controversial stories. Mr. Aspinwall denied that BBC values and vision were discussed at any meeting. The judgment does not comment on why the Claimant would have sent Mr. Aspinwall such an email immediately after the meeting, if that was the case.
The judgment at 7.31 finds, ‘the claimant and Mr. Aspinwall then met on the 5 December and discussed the appraisal. They were not able to agree the contents and consequently Mr. Aspinwall told the claimant that he would not be pursuing his efforts to agree the appraisal any further.’
Three reasons are given for arriving at this conclusion. Firstly it was unlikely that the meeting would have taken place without the appraisal being discussed. Secondly Mr. Aspinwall had mentioned the appraisal in his email of 4th December 2007. These actually comprise a single reason – it was unlikely that the appraisal would not have been discussed as it was mentioned in the email. ‘Thirdly Mr. Aspinwall’s version of events was consistent with an e-mail he sent to HR several months later explaining what had happened, page 384.’ In this note of 7 May 2008, Mr. Aspinwall for the first time tells HR – which tells the Claimant – that the appraisal had not been agreed. He does not say anything about the meeting on 5 December 2007. The argument is also circular relying on Mr. Aspinwall’s original proposition to support its conclusion.
The Tribunal does not consider why Mr. Aspinwall did not mention this meeting of 5 December 2007 in his witness statement or simply state under-cross examination that he had rejected the appraisal and terminated the process at this meeting.
At 7.33 the judgment says the discussion at this meeting was reflected in Mr. Aspinwall’s email of 14 January 2008. This email does not specifically refer to the meeting of 5 December or mention the appraisal. Mr. Aspinwall starts by saying, ‘I never wrote up those notes from the other week when we discussed the SBJ role and what is expected from you. As a matter of course I always put into writing.’
The Claimant’s witness statement at paragraph 15 says:
‘Early in January 2008 Mr. Aspinwall and I met again. I was told that the Network Editor was concerned that I was not deputizing for Jonathan. I was surprised and annoyed that the issue was being raised again so quickly – not least as this came soon after a shift in which Mr. Aspinwall was prepared to play music but I produced a full blown program from scratch. Again I responded by saying I would be prepared to edit whenever required. Mr. Aspinwall again said he would schedule some shadowing in studio as shift patterns allowed. A week or so later on 14 January 2008 Jonathan sent me an extensive email, ‘Devan Objectives’ following on from the meeting.’
The Claimant submitted an appraisal on 12 November 2007 and had no reason to believe until he received Mr. Poole’s response nearly six months later that the appraisal had not been agreed. The email at p 341 was provided as proof by the Respondent, that the Claimant had been informed that the appraisal submitted was indeed unsatisfactory. The judgment does not mention this email or that Mr. Aspinwall was cross-examined at length about this e-mail and was forced to change his evidence. Instead it ignores the Claimant’s direct testimony and infers unsoundly what might have been said by Mr. Aspinwall. It does not mention that in the 14 January email Mr. Aspinwall confirms his concerns were about tasks the claimant had not been asked to do or given an opportunity to undertake.
Discounting the Claimant’s evidence forces the Tribunal to infer, unsoundly, that at the meeting on 5 December 2007 the appraisal was discussed and the process terminated. It is a ground of appeal that this is perverse.
Mr. Aspinwall himself does not mention this meeting of 5 December in his witness statement. In his witness statement he cites an email he claims he sent on 12 November as proof that he told the claimant his appraisal was unsatisfactory. Although this email was shown to be highly suspicious no satisfactory explanation was sought by the Tribunal. It is a ground of appeal that the Tribunal’s omission of this evidence, and its failure to investigate this matter, amounts to bias.
This appraisal of 12 November has never been discussed. It was submitted to Andrew Thorman (at the grievance hearing), who made no comment. Laura Ellis in her Outcome Letter cited earlier versions. The Tribunal, at 7.31, comments on the appraisals. With regard to the first appraisal submitted on 19 September 2007 it says the Claimant’s attitude, ‘can at best be described as extremely flippant – for instance in answer to the question ‘’what should I try to do less of’’ the claimant had stated ‘’smoking’’ page 335 (c). To the question ‘’what should I try to do more off’’ the claimant had stated ‘’sport’’ and in answer to the question ‘’what specific skills/experiences do I want to develop’’ he had stated ‘’journalism’’. The Tribunal found the second draft had added a little more detail although the references to smoking and sport remained. The Tribunal continues, ‘The claimant then sent a third version of his appraisal on 12 November. Again all the answers to the questions highlighted above remained.
The last two versions of the appraisal are produced below. The references to smoking and sport do remain in the third and final version. Changes are made which the claimant believed – in the absence of any other indication – finally satisfied Mr. Aspinwall. The Tribunal does not comment on these additions but instead gives the impression that little has changed. It is a ground of this appeal that such failure and misrepresentation amount to bias.
(c) Postponement of July 2009 improvement plan
A further example given by the Tribunal concerns the decision to postpone the implementation of an improvement plan in 2009. The Claimant’s email at page 1414 was sent to his union representative a few minutes after a meeting on 16 July 2009.
From: Devan Maistry
Sent: Thursday 16 July 2009 11:46
To: Keith Murray-CB
Met with Hussain and Neila a few minutes ago.
I was informed they wish to begin an informal capability process.
They said the issues related to SBJ competencies.
I asked what the specific issues were. I was told these issues are mentioned in the work plan they gave me and which they wish to institute starting tomorrow.
I said I would have to consult you.
Neila is sending you a copy of this work plan.
I have not read it but I think it is similar to the last in which you take the SBJ specification and then attempt to assess the victim against it.
I don’t think this is normal…more to the point I was told by Kate Carr that if you are transferred to a new post you can’t be ‘interviewed’ as it were.
They said they were very pleased with progress made in the last few weeks.
They said they were doing this to help me.
I said I would let you know what transpired and would get back to them. They are keen to start this process before I go on leave. I don’t think they have any grounds for initiating this process. Shall we lodge a grievance
This e-mail establishes:
1. The respondent wanted to implement a work plan beginning on 17 July 2009.
2. The claimant said he would have to consult his union representative, Keith Murray.
3. The respondent would send a copy of the plan to Mr. Murray.
4. The claimant said that after talking to his union representative he would get back to the respondent.
5. The respondent was keen to start the process before the claimant went on leave.
On 21 July the Claimant wrote to Ms Butt copying in Keith Murray and Husain Husaini.
The email read, ‘ Hi Neila, I’ve just heard from Keith – on the phone –and have only been able to have a fairly brief and preliminary chat. He’s tied -up in various meetings but I am hoping to speak to him at greater length in the next couple of days. It might be an idea to take this forward when I’m back from leave. Does that make sense?’
On 23 July Ms Butt replied copying in Mr. Murray and Mr. Husaini. ‘Hi Devan, thanks for your reply. I am hoping to start the informal process promptly on your return on 23 August 2009. And as mentioned we will have an appraisal tomorrow Friday 24th at 1130.’
The email exchange between the claimant and Ms Butt (pages 619-620) further establishes that:
6. Ms Butt sent the plan to Mr. Murray at 12.56
7. The Claimant wrote to Ms Butt on 21 July.
8. The Claimant said he had only been able to have a brief discussion with Mr. Murray.
9. The Claimant said he was hoping to have a discussion at greater length with Mr. Murray in the next couple of days.
10. The Claimant asked if it would make sense to take the matter forward when he was back from leave.
11. Ms Butt replied saying the process would begin on 23 August when the Claimant was back from leave.
12. Ms Butt said there would be an appraisal meeting on Friday 24 July.
The Tribunal at paragraph 21 of its judgment says it was put to the Claimant ‘that the plan was not implemented immediately on the 16 July because the claimant went on leave and had asked to discuss it with his union representative on his return.’ It says the Claimant responded, ‘I disagree’. This seems a reasonable response consistent with the facts. There was no intention to implement the plan on the 16th and the Claimant clearly had not gone on leave. The Claimant consulted with Mr. Murray and, as promised, got back to Ms. Butt on 21 July. The Claimant had not, ‘asked to discuss it with his union representative on his return.’
The Tribunal says that, ‘when the question was put again the claimant then suggested that his union representative was the one who suggested the improvement plan could be implemented after the summer period’. The Claimant had consulted Mr. Murray as confirmed at 8 and 9.
Mr. Murray suggested that given that the summer holiday was beginning and the Claimant had booked leave, whether it might be better to ask to postpone the process.
The Tribunal says, ‘then when questioned about this for a third time, and on being taken to a particular document in the bundle, he accepted that he had requested a postponement of the plan because of holidays’. This admission by the Claimant is simply consistent with 10.
In his witness statement the Claimant says at paragraph 25, ‘I said I needed to consult Keith Murray and sent him a note. At Mr. Murray’s request, it was agreed to postpone implementation until I returned from leave at the end of August.’ This clearly should have spelled out that Mr. Murray suggested the Claimant ask Ms Butt whether a postponement would be practical and that Mr. Murray said he would also speak to management.
It is a ground of appeal that this insignificant ‘example’ of inconsistency unsupported by the facts is revealing of bias and perversity.
(d) Performance issues 15 September 2009
The Tribunal’s last example is that, ‘at paragraph 29 of his witness statement he stated that during a meeting on the 15th September Ms Butt told him that there were no performance issues. In cross-examination he stated there had been a discussion about performance issues.’
At paragraph 29 of the Claimant’s witness statement, he says, ‘Mr. Murray asked Ms Butt to identify the performance issues. She said there were no performance issues but that she lacked confidence in me as Mr. Aspinwall had initiated capability proceedings. Mr. Murray asked if there had been informal discussions. Ms Butt said there had been none.’
It was put to the Claimant in cross-examination that, as the Claimant had not raised it as an issue during or after the meetings, none of this was said. The Claimant said he had told HR manager, Rachel Avenell, he would be raising a grievance. The following paragraphs from that grievance, sent to her, are at page 1414;
‘On September 15 2009 Keith Murray and I met with you and Neila at the Mailbox. Keith enquired whether there had been any discussions prior to the creation of this ‘work improvement plan’ and was told there had been none. He asked what specific performance issues had prompted the institution of capability proceedings. Neila said she lacked confidence in my ability to deputise for her as Jonathan Aspinwall had previously raised performance issues. She insisted that the ‘work improvement plan’ be immediately implemented. I agreed to participate as I faced the threat of possibly being sacked if I refused. I also said that I would lodge a grievance as these proceedings were being conducted in clear breach of the Capability Policy agreed with the union.
The policy requires that informal efforts be made to resolve performance issues and as near to the time as they arise. I do not believe that unilaterally drawing-up a plan for testing/assessing an individual against the job specification satisfies this informal process – particularly in the absence of any specific performance issues and in a situation where the issue of deteriorating performance does not arise.’
Ms Avenell responded on 1 October 2009. She did not identify, as one would expect, the performance issues the Tribunal says the Claimant admitted were discussed. Instead at page 678 she says, ‘these are not fresh capability proceedings but a continuation of the proceedings which were placed on hold while your grievance of 8th June 2008 was considered and subsequently to take account of issues with your health.’ She confirmed this in a letter to Keith Murray at page 1426. Ms Butt could have given this reply to Mr. Murray at the meeting.
The Tribunal at paragraph 7.60 makes the following finding of fact relating to the 15th September meeting, ‘We do not find that during this meeting Ms Butt told the claimant there were no performance issues and that she just had a lack of confidence in him. We resolve this dispute of fact in the respondent’s favour because we consider it inherently very unlikely that Ms Butt would have said there were no performance issues when the very purpose of the meeting was to issue the claimant with an informal performance work plan.’ The Tribunal resorts to inference when it could have cited its assertion that the Claimant admitted under cross-examination performance issues were in fact discussed. This is a striking omission. No consideration is given to the fact that Ms Butt had failed to provide notice of performance allegations requested in May, or that management now claimed a different reason for initiating a new capability process.
It is a ground of appeal that a finding arrived at in this manner is both biased and perverse.
The Tribunal further states, ‘Accordingly we considered there to be serious issues with the claimant’s credibility, and this has underpinned many of the findings of fact that we have made when a dispute of fact occurred.’
The Tribunal says the Claimant’s comments added to meeting notes were a point that came up regularly in the hearing. Indeed Counsel for the Respondent persistently argued, with especial reference to the meeting notes of the 2nd Capability Meeting (866-876), that these comments – ‘clarifications’ in BBC parlance – could not be relied upon as they were made after the meetings
The issue as identified by the Tribunal, ‘was the extent to which the claimant’s quite extensive comments added to the grievance and appeal hearing notes after the meetings represented, on the claimant’s case, what he had said during the meeting, or what were his thoughts after the meeting.’
In cross-examination Ms Laura Ellis confirmed the notes taken by HR were sent to the employee to clarify if necessary. She confirmed these amended notes with the clarifications are regarded as the formal record of the meeting and in her experience this was how it was always done.
At 7.51 the Tribunal acknowledges Ms Ellis’s explanation. It also says the Claimant, ‘provided substantial clarifications to the notes. This is something the claimant did every time he was sent a copy of the notes. The clarifications we find, often did not reflect what was actually said at the meeting, but instead reflected the claimant’s views and thoughts after the meeting.’
At 7.52 the Tribunal finds, ‘finally having read the claimant’s clarifications, Ms Ellis confirmed to the claimant that there were a number of respects in which the clarifications were inaccurate in so far as they were meant to be a record of what was discussed at the meeting, pages 578 -582.’ The page reference is to Ms Ellis’s Outcome Letter of 8 April 2009 dismissing the Claimant’s appeal.
In her witness statement (paragraph 22) Ms Ellis says, ‘in my letter I also raised concerns with the accuracy of statements that Devan had made in response to the notes of the meeting held on 27 February 2009.’ She is referring to comments about the meeting made in a document ‘Further Concerns’ (pages 1378-1390) sent to her by the Claimant on 15 March 2009. The Claimant received the meeting notes on 31 March 2009 and added his clarifications a few days later. Ms Ellis’s concerns and the Claimant’s response were read by the Tribunal and are reproduced below. In her Outcome letter of 8 April 2009 she says:
‘Finally I am concerned about the accuracy of statements made in the written feedback you sent to me following the February 27th hearing.
“At the beginning of the Appeal Hearing Laura Ellis asked me if I replied to e-mails. It’s a curious opening especially as I did not know what e-mails she was referring to and why they took precedence over the grounds of appeal submitted. (More on e-mail attacks later.) She said her reason for asking was that she had a bunch of e-mails which had been sent to me and which had gone unanswered. Why ask a question – whose relevance to the appeal hearing is a mystery – and for which you apparently already have an answer?”
I am quite certain I did not ask you a general question as to whether you replied to emails but rather a specific question about whether you had replied to those sent by Jonathan Aspinwall with the aim of eliciting information about your response to his feedback on your performance. Indeed there is reference to this in the notes taken by HR Manager Aileen Porter that day. Aileen’s notes record:
“LE explained there were a substantial number of emails from Jonathan Aspinwall (JA) but there did not seem to be DM reply”. ‘
The Claimant responded:
‘Laura produced no e-mails that the union representative or I could peruse. Although she mentions that she wanted to elicit my response to specific feedback there is no record to indicate she pursued such a line of questioning either. Here are the notes of the meeting which include my clarifications sent back to management.
‘LE explained there were a substantial number of emails from Jonathan Aspinwall (JA) but there did not seem to be DM reply. DM said that he had responded to these and all other emails from JA, but that in some instances some died a death as they were not important and another way of looking at it was that you deal with the most important first and deal with that.
I recall that Laura asked if I replied to e-mails. When I asked why she posed the question she said she had a bunch of e-mails which I had not answered. I was simply suggesting that there were many possible reasons for why there may not have been a written response to an e-mail. The response may have been made verbally, as often happened, given that Jonathan sat across from me. The e-mail may have been overtaken by developments in which case the response may have been made to a further e-mail. Laura produced no e-mails and did not explain why she was raising the issue.’
Ms Ellis’s second complaint about the Claimant’s reference to the February 27 meeting was:
‘Your notes go on to say:
“Laura also asked whether I believed I was a competent journalist. I had to explain that we were at the hearing to appeal a decision taken by management to raise that question formally and in the context of capability proceedings.”
Again this was not the question I asked, rather, asking if you felt you were capable of fulfilling the needs of the SBJ role you currently occupy. As Aileen’s notes record:
“LE asked DM did he believe his performance was at the level required for an SBJ.”
The Claimant’s response was:
‘The notes confirm that Laura asked me whether my performance was up to standard. In my submission I say that Laura asked me whether I was a competent journalist. I cannot see how Laura can conclude that this is materially different.’
These are the only concerns raised by Laura Ellis about the accuracy of comments made about the 27 February meeting. She also questioned the accuracy of the phrase ‘email attacks’ used by the Claimant in the document.
In cross-examination Ms Ellis was asked if she had investigated the Claimant’s allegations of malice. She said there was nothing in the paperwork that referred to malice. She was asked if she had read the Claimant’s submissions to the grievance hearing (1362). She said she had only become aware of its existence now. It was put to her that the issue of malice was also raised in the document ‘Further Concerns.’ She said she had not read this document although as just shown she had referred to sections of it twice. She was taken to the document at 1378. She said ‘I don’t recognise it, although I can see it has my email address…so I don’t understand how it could be missed by me.’ It was put to her that in her Outcome Letter she had cited the phrase ‘email attacks’ also from that document. Ms Ellis explained that Aileen Porter, must have inserted this into the Outcome Letter. It is disconcerting that Ms Ellis claims not to have read a document to which she has thrice referred. The Tribunal makes no reference to this evidence or its reflection on Ms Ellis’s credibility.
It is a ground of this appeal that the omission of this evidence reflects bias.
The meeting on 20 October 2010 to hear the Claimant’s appeal against dismissal provides a more detailed illustration of how a formal meeting record is constructed. On 22 October 2010, HR manager, Jaspel Kaur, wrote to Tarrant Steele who heard the appeal (p.1250);
Please find attached draft notes from the meeting earlier in the week. Do change around or add anything you might want to.’
On 29 October Ms Kaur wrote to the Claimant (p.1251)
Please find summary notes of the Appeal hearing held on 22 October. I would be grateful if you could let me have any comments by 4th November. If I do not receive any comments by this date I will assume that you regard them to be an accurate record.’
On 3 November the Claimant sent back the notes with his comments included and Ms Kaur sent them on to Tarrant Steele for his information, later that day (p.1254). This record of the meeting begins at p.1246 and is clearly in accordance with the protocol explained by Ms Ellis in cross-examination.
Further evidence of this protocol is shown in a note from HR manager Rachel Avenell. She wrote on 29 September 2010 saying, ‘Please find attached the summary notes from the third capability meeting held on Tuesday 21st September 2010. The purpose of the notes is to ensure there is an accurate record of what was actually said at the meeting, therefore please amend for this purpose only.’(p.1083)
Another example is the note sent by HR manager Aileen Porter on 31st March 2009, (p.568). She wrote, ‘I have attached the notes from our meeting. Please check them for yourself and let me know if there are any amendments you would like me to make.’
The operation of this process in practice had been scrutinized by the tribunal when considering the Claimant’s complaint that Mr. Steele had sought to insert further comments after clarifications were added by the Claimant. It shows clearly that it is the Respondent’s practice to include clarifications as a way of ensuring balance as the notes are not verbatim.
The Tribunal found at paragraph 22 that, ‘the claimant was inconsistent as to the extent to which his clarifications were verbatim notes of what had been discussed in the meeting, but to the extent that this was his position we reject this for two reasons . Firstly, the claimant himself accepted in cross examination on various occasions that the clarifications did not necessarily reflect what had been said…’ In this paragraph the Tribunal does not give examples, but the following are instances in the judgment in which the Tribunal found the Claimant’s clarifications inaccurate.
In his witness statement (paragraph 33) Tarrant Steele said the Claimant had confirmed at the appeal hearing that he did not improve his performance because he thought it was not necessary. The Tribunal accepts this as a finding of fact at 7.96. The Claimant’s clarification, that he had said he worked to BBC standards and there were no genuine performance issues, was dismissed (page 1257 paragraphs 3 -4).
At paragraph 31 of his witness statement Mr Steele says, ‘the outcome that Devan wanted was for us to say that his performance was good, and this would have been the fairness he was looking for; however, this was clearly not possible.’ The Tribunal endorses this view at 7.98 saying, ‘Mr Steele was of the opinion that the claimant had consistently denied he had performance issues.’
Mr Steele was taken to the notes at page 1258. The relevant paragraph is the second and it is reproduced for ease of exposition.
‘I also said that several senior managers had simply ignored my responses refuting the allegations. I said it was clear that a formal four-week improvement plan had not been implemented and that on 22 February Neila was still trying to discuss the amended plan she had sent to me on 16 February. I said that perhaps this behaviour was limited to managers in Birmingham. Tarrant said that even if this was true – given the number of managers involved – he himself would be uneasy about continuing to work at the BBC. He asked me what outcome I wanted. I said managerial conduct like this undermined the integrity of the BBC. Tarrant said there would be a number of managers to sack. Jaspel said there would also people from HR. I said Tarrant needed to do what he thought was right in terms of BBC values.’
The paragraph was read out aloud. Mr Steele agreed this conversation had taken place and that he had made the statements attributed to him. It clearly contradicts the assertion that the Claimant wanted the Respondent to say his performance was good; it clearly shows that the outcome the Claimant wanted was for Mr. Steele to do what he thought was right in terms of BBC values.
It is a ground of appeal that the omission of this evidence reflects bias.
At 7.97 the Tribunal finds, ‘Mr. Steele was concerned because a number of clarifications, in his opinion, did not reflect comments made at the meeting.’ In his note to Jaspel Kaur on 8 November 2010 (page 1262), Mr. Steele says, ‘Hi Jaspel, The majority of Devan’s comments are fine with me. But there are two which I don’t believe reflect what was said.’ The Claimant objected to Mr. Steele’s attempt to further amend the notes and this was allowed as an additional complaint. The final paragraphs at page 1285 set-out one of the Claimant’s comments that concerned Mr. Steele and below it the clarification he wished to add.
‘Tarrant also asked me why I had not raised the issue of bullying under our policy. I said that I had consistently raised the issue and the impact it was having on my health at appeals. I had also lodged a grievance under the BBC Bullying and Harassment Policy. I said I was told the matter had been heard previously in 2008 and 2009 although there was no evidence to support this view. I gave the example of being bullied and utterly humiliated by a presenter on consecutive days in March this year. I said I reported this to Neila and HR.’
‘I did ask why he hadn’t raised the issue of bullying but my recollection is that Devan did not respond as he states here. My memory is that he did not mention any details around this only that he had raised it.’
In his witness statement at paragraph 16 Mr. Steele explained why he wanted to add this comment, ‘Devan claimed he had lodged a grievance under the BBC policy. Normally an employee does this with our outsourced service, BBC HR Direct, and would be given a case number. However, in the meeting I recalled that Devan had actually said he raised this with the confidential employee advice line instead. I therefore wanted to ensure the notes reflected this correction.’ It was put to Mr. Steele in cross-examination that this reason was inconsistent with the comment he sought to add. He was asked if the real purpose of the clarification was to support his finding that the Claimant gave no evidence of bullying at the meeting.
The Tribunal at paragraph 7.97, found, ‘Mr. Steele’s recollection of this was that in response to a statement from the claimant that he had raised the issue of bullying with the respondent’s confidential helpline, he had asked the claimant why he had not raised the issue of bullying under the bullying policy.’
This is not the same as Mr. Steele’s clarification. Moreover there is no record in the meeting notes of the Claimant saying he had raised the issue with the confidential helpline. There is also no record of Mr. Steele asking the Claimant about bullying. The only evidence that the issue was raised comes from the Claimant’s clarification. Clearly the Tribunal has not relied on the meeting notes to establish its finding of what Mr. Steele actually said. The Respondent’s protocol allows disagreements about what was said or left out to be included in the record for precisely this reason.
It is a ground of appeal that the tribunal has been inconsistent and selective about the meeting notes in reaching this finding and this is biased.
A second reason given by the Tribunal for attaching little weight to the clarifications, is that they, ‘were often extensive’ and, ‘we are satisfied it would not have been possible for him to recall, in the level of detail suggested, specific comments made at the meeting.’ It is obvious that the number of clarifications made by the claimant depended on the quality of the note taking and the importance of the points omitted.
With regard to the level of detail, the cross-examination of Kevin Silverton, Head of News at the network, is apposite. It was put to Mr. Silverton that the notes of the appeal meeting on 22 February 2010 at page 776 did not reflect the fact that he said, ‘these allegations are very specific and disproving them does not mean that one has met the standard required of a Senior Broadcast Journalist at the Asian Network.’ The notes also did not record that Keith Murray explained to Mr. Silverton that showing these allegations lacked substance would support a view that there were no genuine performance issues and that these proceedings have been brought maliciously.
Mr. Silverton said he did not recall these remarks. He was then taken to the Claimant’s note at page 780. This was sent by the Claimant to HR manager Paul Mee on 25 February 2010. The Claimant reminds Mr. Mee of these remarks and asks him to clarify Kevin’s position. Mr. Silverton was also shown the note at page 791 submitted to him on 1 March in which the same remarks are cited.
The notes of the 22 February meeting were not sent to the Claimant. If they had been sent the Claimant would have included these remarks and their context as clarifications. The Tribunal said at 7.79, ‘We do not find that Mr. Silverton made it clear that even if the claimant disproved all the allegations it would not demonstrate that the claimant had met the standards of an SBJ at the network.’ The Tribunal also found at the same paragraph that the Claimant had, ‘expressed the view that he was the best journalist on the network.’ The Claimant had noted in his supplementary statement (paragraph 4), that this claim was based on a misrepresentation in notes that he had not seen. Had the notes been sent to the Claimant this would have led to an additional clarification. Mr. Silverton was also taken to page 1389, in which the Claimant expresses his view that Mike Curtis, network manager, ‘is probably the sharpest journalist on the network and I’ve always wondered why he has not gone on to far higher things.’
It is a ground of appeal that the omission of this evidence amounts to bias.
Counsel for the Respondent referred especially to the meeting notes of the 2nd Capability Meeting (866-876) to show the Claimant’s clarifications were made after the meeting. The notes of this meeting are not set out in the usual format with clarifications inserted close to the points they address. They are presented separately as, ‘comments made by the claimant after the meeting.’ They are not in the tabular format in which they were sent to the Claimant. More importantly the Claimant submits the Tribunal is wrong to substitute its view of how the Respondent’s established protocol for recording meetings should be operated. The Respondent may well ignore the clarifications, but it does not suggest they are less plausible for being made last.
It is a ground of appeal that the Tribunal’s approach to the meeting notes favours the Respondent and reflects bias and perversity in light of the evidence heard.
Presentation of the Claimant’s Evidence
The Tribunal at paragraph 22, notes the Claimant’s witness statement was relatively short. ‘The claimant had chosen instead to refer in his statement to very large amounts of documentation. The documents he referred to often took the form of emails which he had copied and pasted together with various comments attached, which were often not in chronological order, and which frequently contained only part of the email rather than the whole document. He also relied extensively on his submissions to the various grievance and appeal meetings, which were often very long and dealt with many different issues, were not always in chronological order and in themselves contained copied and pasted extracts from parts of emails. We did ask the claimant at one point to take us to the documents in chronological order to try to assist with the evidence, but he struggled to do this. Of course none of this impacts in any way on the claimant’s credibility but it does mean that we have had to pull together the claimant’s case from an often very confused presentation.’
Some preliminary comment is in order. The Respondent had segregated the Claimant’s documents in separate bundles as it considered them irrelevant and the Tribunal had denied the Claimant’s request to use a simple index identifying the documents referred to in his witness statement. More pertinently, and as the Claimant has argued, the remarkably convoluted conduct of the capability process has only served to muddy the water. Moreover many of the performance complaints would be regarded as risible by competent editors. In this dispute there were none to whom the Claimant could appeal; in his closing submissions he drew attention to the difficulty of calling more independent witnesses for fear that they themselves would be victimised. However the evidence of Kevin Silverton, Head of News, illustrates how this may have helped.
The Tribunal at 7.25 finds entirely on the evidence of Mr. Aspinwall that the BBC has a system of ‘bids’ in which journalist notes are transferred to a public folder. Mr. Aspinwall generated a host of complaints about the Claimant’s failure to record these ‘bids.’ Mr. Aspinwall was cross-examined on his assertion (page 365), that this was a legal and editorial necessity. He said this was put in place after the ‘Gillingham Report’, which of course does not exist. He said, ‘it helps us legally; it’s not set in some legal doctrine.’ In cross-examination Kevin Silverton Head of News, said he was unaware of such a system. ‘Journalists’, he said, ‘kept their own notes.’ It is pertinent that the Tribunal found at paragraph 7.25 that every journalist who works on BBC News is required to record their ‘bids’, to the exclusion of the evidence given by the Head of News. This is not mentioned by the Tribunal but the Claimant’s alleged failure to record bids was referred to by Laura Ellis in her decision to dismiss the Claimant’s appeal in April 2009. The Tribunal therefore had to read the Claimant’s response to this.
It is a ground of appeal that the omission of Mr. Silverton’s evidence contradicting Mr.Aspinwall, shows bias and perversity.
The cutting and pasting of emails into documents has been entirely necessary. This can be seen in the detailed response to allegations of performance failures made in support of the issue of a formal note and improvement plan at pages 787—836. A complaint that the Claimant ran an interview a few minutes late on 24 September 2009 is dealt with in pages 805-808.
A lengthy email chain is necessary to establish that producer Alex Fielding, responsible for this interview, was completely irresponsible. This included telling the guest, Rhi Morgan, he had been away ill as an excuse for not replying to her earlier. He was ill on Monday 21 September, not on Wednesday 23 September. The email trail shows Ms Morgan’s interview was scheduled for 10.30am. Mr. Fielding received her menu of stories at 9.41 but made no effort to produce a script. Instead at 10am he forwarded this via email which the Claimant was unlikely to see in studio.
At 10.15 he dropped into studio to tell the Claimant he had forwarded Rhi’s menu which was not in the appropriate format and would need to be scripted. This delayed the interview by a few minutes .Ms Butt said the Claimant should have rescheduled the interview rather than run it a little late. Ms Bedi, the presenter, said she should have been allowed to ‘busk it’. The Claimant was forced to produce a lengthy explanation which the Tribunal read. It was put to Ms Butt in cross examination, that this was in fact the major issue on 24 September. She was asked if she had taken up the matter with Mr. Fielding. She said the Claimant had enough time to script as the interview was only scheduled for 11.30am. This is patently untrue and journalistically unconvincing.
This allegation was refuted by cutting and pasting the email trail into the explanation. It led to this complaint being dropped while issues arising from this exaggerated crisis appear as the Tribunal’s finding of fact at 7.63. This includes the claim that guests had not been briefed properly. Rhi Morgan was in fact the only live guest. Ms Butt’s cross-examination is not mentioned although this incident would eventually be given as one of the reasons for the Claimant’s dismissal.
It is a ground of appeal that the omission of this evidence reflects bias.
Emails were cut and pasted into a complex note sent to HR manager Rachel Avenell on 6 October 2010. This was to put on record the Claimant’s struggle to get management to give notice of the performance allegations it intended to raise; and to illustrate why even BBC journalists cannot be expected to defend every allegation under the sun. The Claimant has also complained about the rash of unfounded allegations. In his supplementary statement he drew particular attention to a host of new claims made by the Respondent. ‘Senior managers allege – for the first time- that concerns about the claimant’s performance were discussed at high-level meetings from 2005 onwards. Against this backdrop, numerous alleged performance failures are now presented as evidence to support the initiation of capability proceedings…There is no effort to distinguish allegations of serious journalistic failure from contingencies that are accepted as part of the reality of radio production. All and sundry are zealously included… Disparate and ambiguous emails from the past provide tenuous support for these latest claims.’
By way of example Ms Butt was asked in cross-examination whether a claim of poor communication addressed at 2(xi) of the Claimant’s supplementary statement was in fact a non-issue. The Claimant had taken a telephone message and conveyed it to all the team, including Alex Fielding, by email. Ms Butt’s completely unconvincing reply was this was not proactive enough. The Claimant should have spoken to Mr. Fielding. Clearly, had these claims been presented earlier, the ‘very large amounts of documentation’ to which the Claimant refers would have increased considerably.
It is a ground of this appeal that the omission of this evidence rebutting a claim made in Ms Butt’s witness statement reflects bias.
The evidence shows that complaints have also had to be put repeatedly to different managers, and included in later submissions, after being steadfastly ignored. The Tribunal does not mention that after hearing the evidence of the Respondent’s chief witness, Ms Neila Butt, it asked Counsel to prepare a schedule that would allow the Tribunal to understand her evidence in the context of the capability process. This document, ‘Neila Butt’s involvement in capability process’ was prepared overnight. The following examples are given to show how the Respondent’s failure to transparently conduct a relatively simple process has compelled detailed, time consuming, unnecessary and tedious responses, and more pertinently to dispel the Tribunal’s claim of confusion.
(i) Interpreting the agreement
The Claimant’s argument that management was breaching the capability policy agreed with the unions was raised a number of times. The most detailed exposition is at pages 1379-1385. In brief it is that performance issues should first be identified – in this case at the appraisal – and discussed in an effort to resolve them informally. Only when this fails should there be resort to the more formal process which includes provision for a plan of improvement. The Claimant’s view was that no performance issues had been raised at the appraisal.
In April 2008 management initiated a formal process. Asked to identify the performance issues Mr. Poole, as noted above, said in May 2007, ‘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.’(page 1320).
The Claimant learnt for the first time, from Jonathan Aspinwall’s witness statement (paragraph 23), exchanged in November 2011,that the performance issue raised at the appraisal was the Claimant’s inability to meet the SBJ standard. He was only doing a fraction of the SBJ tasks and he was a long way from carrying out the SBJ role.
At 7.29 the Tribunal makes the following finding, ‘During the course of the appraisal discussion Mr. Aspinwall explained to the claimant that he considered that the claimant was a long way off carrying out the SBJ role and he discussed with him his performance concerns. There was a dispute of fact as to whether performance concerns were raised during the meeting which we resolved in the respondent’s favour, and we did so because we accept, and have found as a fact, that by this time, Mr. Aspinwall had performance concerns about the claimant and we consider it inherently unlikely that he would not have raised such performance concerns at a performance appraisal.’
The Tribunal makes no comment on why Mr. Aspinwall had not stated this in the first instance, especially as the evidence heard showed that in March 2009 he told Laura Ellis that he had concerns about the Claimant’s ability to fill the role from the time he arrived at the Breakfast program in May 2007(page 563). At 7.24 the Tribunal says, ‘We do not find that he told the claimant he had no future on the program although we do find that Mr. Aspinwall knew by this point that there were performance issues with the claimant. We make this finding because we consider it inherently unlikely, given that everyone was working in a small office, that he would not have been aware of the other managers concerns.’
In her witness statement, Ms Sharma says at paragraph 19, that the Claimant was moved to the Breakfast program because Channel controller Bob Shennan felt Jonathan Aspinwall would be able to line manage him more effectively. It was also hoped that Jonathan Aspinwall would mentor the Claimant. Clearly, although this was not discussed with the Claimant, his lack of capability had been established.
At 7.37 the tribunal rejects the Claimant’s contention that Mr. Aspinwall had not raised performance issues at the appraisal. It says HR manager Graham Poole had explained that performance issues were discussed. ‘No further detail was given, although there is no requirement under the respondent’s performance process that full details of the performance issues should be given at the point when an employee is invited to attend a formal meeting. The claimant was in any event, we find, fully aware of what the performance issues were as a result of all the earlier feedback from Mr. Aspinwall, although we consider it very likely that he closed his mind to the feedback and refused to accept it was correct.’
It is clear that by all the earlier feedback the Tribunal refers to the numerous performance queries and allegations made by Mr. Aspinwall. As these alleged performance issues were never investigated it is a ground of appeal that this finding is biased. It is a ground of appeal that a finding that there were performance issues, which did not need to be identified and which the Tribunal does not identify is perverse.
The Tribunal does little to satisfy itself that this ‘feedback’ was part of a coherent informal process consistent with the capability agreement. Mr. Aspinwall said he kept no notes of meetings. As evidence of an informal process he simply includes everyday work emails from his outlook express, ‘all the earlier feedback’ as the Tribunal says.
At 7.34 the Tribunal finds, ‘Shortly after this Mr. Aspinwall went on leave and returned on 31 March. He then met with the claimant on 2 April, page 375, and went through the objectives set in the 14 January e-mail and his progress against these. Mr. Aspinwall made it clear to the claimant there had been no improvement.’
The email at page 375 is sent by Mr. Aspinwall on 1 April 2008. He says, ‘Hi Devan, can we please meet at 12:30 tomorrow to discuss your objectives, etc.’ In his witness statement at paragraph 38 Mr. Aspinwall says this meeting took place on 1 April. There is no other evidence to support Mr. Aspinwall’s contention that a meeting took place.
At 7.35 the Tribunal finds that Mr. Aspinwall met the Claimant on 11 April and explained what the main issues were with the Claimant’s work. In his witness statement at paragraph 16 the Claimant says, ‘On 10th April 2008, Mr. Aspinwall asked me to attend a meeting the next day, ostensibly to discuss the January 14th e-mail. At this meeting I was told I would be required to attend a formal capability hearing on 21st April 2008. I told Mr. Aspinwall that this was outrageous and further evidence of maltreatment. I pointed out that the editor had completely ignored me at a meeting with the Breakfast team earlier that day. He suggested I complain to HR Manager Mr. Graham Poole. Mr. Aspinwall then sent me an email confirming that the formal capability process had started.’
The Tribunal said at 7.35 that, ‘There was a dispute of fact between the parties as to what was discussed at the meeting which we resolve in the respondent’s favour. The claimant’s case was that the meeting took place and he was told he would need to attend a formal meeting to discuss his performance, but there was no discussion about his performance issues. We resolve that dispute of fact in the respondent’s favour and we do so because it seems inherently incredible that a meeting would take place at which the claimant was told he was moving to the formal stage of the performance process without there being any mention of the performance issues’.
At 7.37 as seen above, the Tribunal found there was no reason for full details of the performance issues to be given at the point when an employee is invited to attend a formal meeting. It is a ground of this appeal that the finding at 7.35 that it was inherently incredible for the Claimant not to be told about the performance issues is contradictory and perverse.
The Claimant objected to the implementation of a formal four week plan on the grounds that performance issues had not been identified and there had been no informal process satisfying the agreement. Management offered a compromise; the plan would be implemented as an informal plan. The Claimant complied to show goodwill but wrote to HR voicing his reservations that the imposition of such a plan implied performance issues had been identified, that such a plan could only be implemented at a formal stage and that it amounted to re-interviewing the Claimant. The plan essentially required the Claimant to demonstrate he met the job specification for the post to which he had been transferred. It included elements such as proving the ability to write and edit the work of colleagues.
At 7.38 the Tribunal says, ‘We do not find that this work plan was a means of subjecting the claimant to bullying or that the plan was designed to identify shortcomings rather than to help him improve, we consider that it was a reasonable means to address the performance issues identified, taking into account in particular that both the claimant and his union representative agreed this course of action.’
The Tribunal does not comment on the use of a hastily implemented four week plan to address the major issue of an employee quite unable to fill his role or that the claimant had expressed his reservations about this plan. It a ground of appeal that there was a failure to consider the nature of the plan, its hasty implementation and the manner of its implementation all canvassed in cross-examination. There further was no consideration of why this plan was not reviewed. It is a ground of appeal that this amounts to bias.
At paragraph 7.6 the tribunal found that the capability policy agreed with the unions (Agreed Statement E1a2 at page 295-296), allowed the use of improvement plans at the informal stage. The Tribunal stated, ‘This set out that there may be occasions where performance issues have to be addressed outside the appraisal process. The policy suggested that informal discussions about the employee’s performance should be held first of all. The process did not specifically say that improvement plans could be used as part of the informal process, but neither did it prohibit it. It stated that only when the manager determined that an individual had not responded to informal feedback and performance had fallen to an unsatisfactory level would certain further steps be taken. These further steps were that a manager may require an individual to complete a ‘program to achieve improvement’.
The Tribunal’s finding that the agreement could be interpreted in this manner by the Respondent is unsound. It relies on conflating two distinct paragraphs. Here is the relevant section of the agreement.
Agreed Statement E1a2 Issues of Capability
The appraisal process is concerned with improving the performance of all staff. However, there may be occasions at the time of the appraisal when a manager identifies a level of performance which is unsatisfactory. There may be occasions when at other times a manager identifies a rapid and significant reduction in the level of performance. In these circumstances, it is important that specific action, outside the appraisal, is taken to help the member of staff improve performance.
2 Informal discussion
A primary objective is to ensure that staff who show signs of poor performance are given the opportunity and encouragement to improve. In these circumstances managers will discuss aspects of performance with a member of staff on an informal basis. Only when the manager determines that an individual has not responded to informal feedback and performance has fallen to an unsatisfactory level will the steps outlined below be implemented.
3 A programme to achieve improvement
Where a manager concludes that a member of staff’s performance is unsatisfactory, the manager may require the individual to complete a programme to achieve improvement subject to following the steps outlined below:
a) If a manager identifies that a member of staff’s performance is unsatisfactory and appraisal discussions and/or informal discussions have failed to result in improvement, the manager will meet with the member of staff to identify the reasons for the unsatisfactory performance and explain clearly the improvements that are required. Subject to the discussion, the outcome of the meeting could be a programme to achieve improvement; this would nominally be for a period up to six months.’
Paragraph 2 clearly says that only when the informal process has failed can the further steps, described at paragraph 3, be taken. These may include the implementation of a plan to achieve improvement. In any case including what (the Tribunal claims) is not expressly excluded in paragraph 2 is not enough. Paragraph 3 also says such a plan may only be implemented after the informal process has failed. To satisfy the Tribunal’s conclusion it is also necessary to exclude what is expressly included in this paragraph. The Claimant’s view is that such ‘flexibility’ of interpretation, ignoring context, obliterated the distinction between the informal and formal stages rendering the agreement meaningless. It created a precedent for re-interviewing senior journalists at the whim of management.
At paragraph 12 of his witness statement, manager, Andrew Thorman says, ‘As part of my investigation, I reviewed the informal work plan in question. Although, I felt that the issuing of a work plan is indicative of a formal process, I agreed with the reasoning, which was to provide clarity to Devan and agree objectives.’
It is a ground of appeal that finding such an interpretation acceptable in the manner the Tribunal does is perverse and biased. It is also biased and perverse in that it sanctions a flawed capability process in breach of the agreement.
(ii) Formal Work Plan
In his witness statement the Claimant says at paragraph 35, ‘On 6th January 2010, Ms. Butt emailed me a formal improvement note which included a four-week formal improvement plan. This new plan was to be implemented as a result of my perceived failure under the previous six week informal improvement plan. Forty minutes later she emailed asking if we could meet. I told her I would need to discuss the plan with Keith Murray. On 11th January 2010, we were told the Nikki Bedi show was to be scrapped. On 12th January 2010, there was a death in Ms. Butt’s family and she was away for a few days. On the same day Keith Murray emailed saying he had strong reservations about the plan. On 19th January 2010, Ms. Butt emailed saying she was working from home. Her clear concern was preparing to launch two new programs, The Sonia Deol Show and a revamped Drive to be presented by Tommy Sandhu. I was assigned to remain on the Nikki Bedi Show. Ms. Butt was also taken ill. I do not recall any further contact with her until 8th February 2010, although Mr. Husaini called on 3rd February 2010, to say the ‘process’ would resume when Ms. Butt returned.’
At paragraph 37 the Claimant states, ‘Ms Butt returned to work on 8th February 2010. On 11th February 2010, she asked for a meeting the following day. At this meeting on 12th February 2010, she wanted to discuss the improvement note. I said I would need to look carefully at the note. Although she had notified me about this meeting the previous day she had not told me what it was about. We agreed to meet on Monday 15th February 2010. At this meeting I told Ms. Butt that the note was out of date and related to a program that was now defunct. She thought it could still be used. I thought it would be better to amend the note. Ms Butt sent me her amended note on 16th February 2010 and confirmed we would meet on Friday 19th February 2010. The manner in which this note is amended shows little sincerity. Management’s claim to have conducted a four-week improvement plan based on such a casual and careless document can only suggest rapidly deteriorating standards at the Corporation.
At paragraph 39, ‘On Monday, 22nd February 2010, Keith Murray and I attended a hearing at the Mailbox. I had put together a file of documents to support my case. Mr. Silverton made it clear that even if I disproved all the allegations it would not demonstrate that I met the standards required of an SBJ at the Asian Network. As Mr. Murray was only available for an hour the hearing was adjourned. Later that afternoon Ms. Butt sent me an email apologising for not meeting on 19th February 2010, and requested a meeting the next day, Tuesday 23rd February 2010. I was taken ill and only returned to work the following week.’
Finally, at paragraph 44 the Claimant’s witness statement reads, ‘On 5th March 2010, I became ill at work. I left early after sending Mr. Khaliq Meer and the team a handover. Ms. Butt returned to the office on Monday 8th March 2010. On Wednesday, 10th March 2010, she asked for a meeting. I mentioned the incident with Sonia Deol to give her some idea of the difficulties I had faced. She then told me the four-week formal improvement plan had ended on 5th March 2010. When I expressed surprise she asked if I was denying that I had been informed about a formal process. I said that I was still waiting to discuss her updated improvement note. When I returned to my desk I found an e-mail inviting me to a second capability meeting. I wrote a hasty note to Ms. Butt explaining why I did not believe the four-week plan had been implemented.’
This note at page 845-846 was followed by an effort at the 2nd capability meeting on 18 May to establish when this plan was implemented (866-867). Several different answers were given. The Claimant further included a detailed timeline to the appeal heard by manager Keith Beech to show this plan could not have been implemented in any meaningful sense (page 911-921).
At 7.73 the Tribunal resolved a dispute of fact as to whether any meeting took place on 6 January 2010 in favour of the Respondent. For support it refers to an entry in the section, ‘Feedback and Support’ (notice of dismissal letter- 1 October 2010 at page 1092), in which the Respondent lists the ‘regular informal meetings to discuss the improvement plans, progress, feedback and training’, held since January 2010. The entry is:
‘6th January 2010 – this meeting had to be stopped as you asked to go through the plan with your union representation prior to our meeting taking place.’
In cross-examination it was put to Ms Butt that this meeting could not have taken place. She said this entry actually refers to the 5th of January.
It is a ground of appeal that a finding that there was a meeting on 6 January on the basis of the above entry is perverse and the omission of Ms Butt’s evidence shows bias.
At 7.73 the Tribunal says, ‘It was also the claimant’s case that the formal plan was never implemented because there was no meeting to discuss the plan in detail. We reject this. There is no requirement under the respondent’s capability process that a meeting be held in order to implement an improvement note and plan and in any event the documents made it quite clear that the plan started with effect from 6 January. The claimant’s consent is not needed for it to be implemented. Consequently we find that the improvement note and plan was implemented from this date.’
This is a straw man argument. In his submission to the 2nd capability meeting (opening paragraph at page 877), the Claimant says, ‘Management claims that this four-week plan was implemented between January 5 and March 5. My view is no such process took place.’ The Claimant said in his notice of grievance at page 911, ‘Management claims this final warning and new plan is issued because I have failed to meet various objectives during the course of a four week improvement plan. It is a ground of appeal that this improvement plan was never implemented.’
It is a ground of appeal that the use of a straw man argument is biased and perverse.
The original improvement note says (page 886), ‘I will also be initiating a Formal Improvement Plan with you, which is enclosed with this Improvement Note and we will meet to discuss the Improvement Plan on 6th January. We will do an interim review of progress against the plan in two weeks’ time, 21st January 2010.’ In the 16 February amended note, 6th January is changed to 7th January. Clearly Ms Butt intended to discuss the plan.
In support of its contention that a formal plan was implemented management cited various ‘feedback ‘meetings. The notes of the 2nd capability meeting record at page 875 state,
‘NB said that she had actively tried since the 6th January 2010 to meet with DM to provide regular feedback. The following dates:
6th January – tried to meet and go through the improvement plan but DM wanted more time so unable to go through the whole plan.
The notice of dismissal referred to above, includes 19 February 2010. Counsel’s document, ‘Neila Butt’s involvement in capability meeting’, lists five ‘Feedback meetings re: this Note/Plan’. These are 12th February, 15th February, 19th February 2nd March and 10th March.
At 7.75 the Tribunal finds a meeting took place on 12 February. ‘The claimant said he wanted time to go through the documents over the weekend and it was agreed to reconvene their meeting on Monday 15 February. Ms Butt also decided she would extend the review period for the improvement plan in order for the appeal to take place. We reject Ms Butt’s evidence that the plan was extended because of her sick leave, firstly because her sick leave was relatively short and secondly because this was not consistent with page 759.’
The email referred to at page 759, is from HR manager Rachel Avenell to Ms Butt, sent on 11 February. It reads, ‘Hi Neila, The new end date to insert into the improvement plan for the end of the review period is 5th March, and this to be across the document as required, this will give adequate time for the appeal to be heard and outcome given. I have put a meeting request hold in your diary for the Monday 8th March, 1pm for the second capability meeting. Keith also has this in his diary but we will invite Devan once the appeal has been completed as we obviously have to see what the outcome is before we proceed with the second meeting.’
If the Tribunal is correct that Ms Butt’s sick leave had no impact then the plan was completed on 8 February. Management merely had to set an appropriate date to ensure the review took place after the appeal decision was given – as Ms Avenell does. There is no obvious reason for extending the plan.
It is a ground of appeal that the rejection of sick leave as the reason for extending the plan is biased and perverse.
At 7.76 the Tribunal finds that at the meeting on 15 February Ms Butt discussed the extension of the review period to 5 March. No effort is made to resolve the dispute of fact. The Tribunal acknowledges that many of the deadlines in the amended plan of 16 February had already passed. However it finds this was a simple oversight which would not have mattered.
It is a ground of appeal that this failure to resolve a dispute of fact shows bias.
At 7.78 the Tribunal finds the 19 February meeting did not take place. It makes no comment on why the Respondent asserts a ‘feedback’ meeting was held on this date in both the Claimant’s notice of dismissal and the document submitted by Counsel at the Tribunal’s request, to help it understand Ms Butt’s evidence. It also finds the Claimant had gone of sick on 20 March and remained off sick till 1 March, but attended the appeal hearing on 22 February. This is an unusual finding as 20 March was a Saturday and the Claimant did not work weekends.
It is a ground of appeal that this finding is biased in giving the impression the Claimant may have been ill when Ms Butt failed to attend a meeting she claims was held.
At 7.80 the Tribunal finds the Claimant met Ms Butt on 2 March 2010 following an incident in which the Claimant alleged he had been told to ‘get out of the studio’ by Ms Deol. The Respondent’s view of this incident is endorsed. More pertinently the Tribunal says, ‘After the debrief Ms Butt had a meeting with the claimant and put to him that he did not know how to close the studio down, and that he had left the studio without returning to check what had happened or bring help. The claimant acknowledged this was a mistake on his part.’
In his witness statement at paragraph 41 the Claimant says, I asked for a meeting with Ms Butt and explained the situation. She said I had ‘made the right call.’ The Tribunal makes no effort to resolve this dispute of fact. It does not refer to the evidence put before the tribunal at pages 802-803 – on which Ms Butt was cross-examined – showing that it was Ms Butt, rather than the Claimant, who was technically challenged. Ms Butt had delayed the start of a program being broadcast from London for over 3 minutes and almost taken the station off air. In cross-examination she agreed she was the studio producer and this was a serious issue. ‘But,’ she said, ‘it was not as bad as dead air’ (silence at the listener’s end). There is no comment on why this meeting requested by the Claimant to specifically address an unpleasant encounter is presented as one of the ‘feedback’ meetings allegedly conducted during the formal plan.
It is a ground of appeal that it was biased to omit this evidence.
At 7.83 the Tribunal refers to the 2nd capability meeting on 18 May 2010. ‘During the meeting the claimant maintained that the improvement plan had not begun and that it could not in any event form the basis of a formal procedure because the Nikki Bedi show was replaced by the Sonia Deol show and therefore the plan was out of date and could not be valid. We consider it very likely that the claimant by this point had made a decision that he would not co-operate with the performance process and would seek to obstruct it where possible, and that these objections were examples of this.’
The first part of this paragraph is the familiar straw man argument. With regard to the second half it is worth noting that the complete lack of notes of the feedback meetings claimed to have been held during a formal process attracts no comment. This contrasts completely with the documentation of the preceding six week informal plan implemented in September/October 2009. The Tribunal found that the Claimant was held responsible for proactively identifying and organising training/development opportunities. This should have been of interest to an industrial jury with HR experience; the more so as Ms Butt was not connected directly with the Nikki Bedi show on which the Claimant worked till the beginning of February. It is also evident that after 6 January there was no further communication about the improvement plan till 12 February. It is also difficult to see why the Claimant should be considered obstructive when as the Tribunal found the plan began on 6 January and was only extended after its completion by the Respondent.
It is a ground of appeal that the Tribunal’s finding that the formal plan was indeed meaningfully implemented is both biased and perverse.
Credibility of the Respondent’s witnesses
Finding the credibility of the Claimant poor does not relieve the Tribunal of a duty to assess the reliability of the Respondent witnesses and the consistency of the evidence given. There are a number of examples of the Tribunal’s deferential approach in this regard which it is believed requires detailed exposition.
(i) Friday 13th
The judgment at paragraph 5 explains how an allegation of harassment on 13 June 2008 came to be excluded as a complaint.
‘Complaint 12 of the schedule of complaints was a complaint that on 12 June Ms Neila Butt had harassed the claimant at a planning meeting. Complaint 13 was that Jonathan Aspinwall had done nothing to prevent this harassment at the meeting. When it came to cross-examination on these complaints on day six of the Hearing the claimant stated there was a separate complaint involving an incident of harassment with Ms Butt on 13 June, and that Jonathan Aspinwall had failed to prevent this harassment also. These were not complaints listed in the schedule of complaints. After some discussion with the claimant and Mr. Sadiq it was agreed that there had been complaint made by the claimant in relation to incidents on 13 June at the PHR in March 2011. A list of complaints was then drawn up which did not include the 13th June incidents, and this list of complaints was then agreed between the respondent and the claimant during the Case Management Discussion that took place on 17 June 2011. The claimant was provided with a list of the complaints shortly after this CMD and had taken no point about the 13 June incidents not being included in the agreed list. The respondent had prepared its case on the basis that the 13 June incidents were not being pursued. We explained to the claimant that, given that the 13 June incidents were not in the agreed list of complaints, he would need to apply to amend his claim in order for these to be considered and that such application may or not be objected to by the respondent. The claimant indicated that he was happy to proceed on the basis that the 13 June incidents would not be considered. He stated that he would ‘rather just get on.’ We therefore agreed to proceed on this basis.’
At the hearing referred to on 3rd December 2010, Judge Hughes clarified the Claimant’s claims;
‘The claimant complains that on two occasions during the period when the formal improvement plan was in place he was bullied by a colleague, Ms Butt. The claimant says that on 12 June 2008 he was asked for the first time in over a year of working on the Breakfast Programme to conduct a planning meeting. He said he was given no opportunity to settle in properly to the task and was interrupted by Miss Butt who took over and behaved in a bullying fashion giving him very little opportunity to speak. The claimant says that Mr. Aspinwall, the assistant, had managerial responsibility for preventing this behavior but failed to do so. The claimant alleges that Ms Butt harassed him on the grounds of age and/or philosophical belief and that by encouraging her behavior and/or failing to prevent it, Mr. Aspinwall directly discriminated against him and/or harassed him on the grounds of age and/or belief. The claimant alleges that the same behavior happened on the following day and involved the same people.’
Judge Hughes, at paragraph 2 of her order of 17 June 2011, confirms the Respondent’s representative had ‘kindly produced a draft list of issues’. She enquired whether the Claimant had read this list and was informed that he had only just received it.
This is how the harassment claims appeared in this draft list of issues:
Harassment on grounds of philosophic belief
9(k) In June 2008 Mr. Aspinwall encouraged and or failed to prevent the alleged harassment the Claimant experienced from Ms Butt; he relies upon a hypothetical comparator.
Harassment on grounds of age
10(j) In June 2008 Mr. Aspinwall’s failure to encouraged (sic) failed to prevent the alleged harassment the claimant experienced from Ms Butt; he relies upon a hypothetical comparator.
It is clear that both the above paragraphs include the incidents of 12 June and 13 June 2008. The assertion of the Tribunal that, ‘a list of complaints was then drawn up which did not include the 13th June incidents’, requires explanation.
Judge Hughes at paragraph 2.4 of her Order of 17 June says:
‘As regards paragraph 9(k) and paragraph 10(j) the claimant makes two allegations of harassment. He alleges that in June 2008 Ms Butt harassed him by continually interrupting him. He also alleges that Mr. Aspinwall encouraged Ms Butt to do so and/or failed to prevent her from doing so. The claimant alleges that these amounted to acts of harassment.’
At paragraph 2.5 Judge Hughes makes the further point that she does not think a comparator necessary for the purpose of harassment allegations.
At paragraph 5 she records, ‘Having clarified the above matters, the Claimant indicated that he was happy with the list of issues. The Respondent’s representative will send the final version to the Claimant and provide a copy to the Tribunal. We then discussed directions in respect of the substantive Hearing of this case.’
Pursuant to the order, and indeed the draft provided, the amendments could reasonably be expected to approximate the following:
Harassment on grounds of philosophic belief
In June 2008 Ms Butt harassed the claimant by continually interrupting him. He also alleges that Mr. Aspinwall encouraged Ms Butt to do so and/or failed to prevent her from doing so. The claimant alleges that these amounted to acts of harassment.’
Harassment on grounds of age
In June 2008 Ms Butt harassed the claimant by continually interrupting him. He also alleges that Mr. Aspinwall encouraged Ms Butt to do so and/or failed to prevent her from doing so. The claimant alleges that these amounted to acts of harassment.’
Instead, Counsel for the Respondent made the following amendments:
Harassment on Grounds of Philosophic Belief
10(k) In a planning meeting on 12 June 2008 Ms Butt harassed the Claimant by continually interrupting him; he relies upon a hypothetical comparator.
10(i) Mr. Aspinwall encouraged and/or failed to prevent the alleged harassment the claimant experienced from Ms Butt in the meeting of 12 June 2008; he relies upon a hypothetical comparator.
Harassment on Grounds of Age
10(k) In a planning meeting on 12 June 2008 Ms Butt harassed the Claimant by continually interrupting him; he relies upon a hypothetical comparator.
10(i) Mr. Aspinwall encouraged and/or failed to prevent the alleged harassment the claimant experienced from Ms Butt in the meeting of 12 June 2008; he relies upon a hypothetical comparator.
The Claimant admits he failed to notice the omission in the agreed list sent following the CMD on 17 June 2010. The schedule of complaints was only provided during the hearing after the Claimant became aware of the existence of the ‘Scott schedule’, and requested a copy. The Tribunal notes, ‘the respondent had prepared its case on the basis that the 13 June incidents were not being pursued’.
The Claimant believes the manner of this preparation deserves closer scrutiny. Before Jonathan Aspinwall gave his evidence Counsel told the Tribunal that a note (page 404) was ‘mistakenly’ headed Friday 13th June 2008. The Tribunal was asked to accept that it referred to Thursday 12 June 2008.
It is useful to set-out the Claimant’s evidence relevant to the June harassment complaints as given in his witness statement.
At paragraph 20 of the Claimant’s witness statement, ‘The ‘informal plan’ was to have begun on 2nd June 2008. Mr. Aspinwall put it into operation immediately and held the first feed-back meeting on Friday 30th May 2008. The following Friday he held a second feedback meeting. There was no feedback meeting on Friday 13th June 2008 as I told Mr. Aspinwall I could no longer endure the bullying and was going home. In my claim I said I had been bullied twice in this period and referred to Ms Butt’s behavior at a planning meeting on 12th June 2008. Mr. Aspinwall’s first ‘feed-back’ note however confirms this happened earlier. However I recall that 12th June and 13th June were consecutive days of utter humiliation. Following the debrief on Thursday, Mr. Aspinwall sent me a note saying I would be on a Broadcast Journalist shift the next day and alerted me to the counseling service funded by the BBC. The next day however I was asked to studio produce. I was harried relentlessly – and in my experience unnecessarily – at a meeting especially called by Ms. Butt. As I recall Ms. Butt finally raised the issue of my checking a script over the phone with our political correspondent Joanna Shinn. I had read the last few words of what the guest would be saying back to Joanna – instead of the beginning of her question – and immediately corrected myself. For Ms. Butt this slip lasting no more than a few seconds, and which had absolutely no production significance, became a major issue which she pursued until I told Mr. Aspinwall I was ill and needed to go home. There were no further ‘feedback meetings’ although Mr. Aspinwall and I had a cup of tea together a week or so later when he said he was ‘sick of the politics’.
The Claimant in this evidence refers to feedback given by Mr. Aspinwall during the four week informal process conducted in May/June 2008. This was contained in a document, ‘Informal Work Plan’ sent to the Claimant on 11 July 2008. The comments in yellow were previously sent to the Claimant on 10 June 2008; the comments in turquoise were added subsequently. The following section is relevant and was shown to Mr. Aspinwall and Ms Butt.
WE MADE A LITLE PROGRESS ON THIS WHEN YOU CHAIRED ONE OF THE MEETINGS – HOWEVER NEILA STEPPED IN WHEN DECISIONS WERE NOT BEING MADE AND THE MEETING DRAGGED ON. YOU NEED TO BE PRO ACTIVE IN CHAIRING THE MEETING AND DECIDING WHAT WE’RE DOING AND WHAT WE’RE NOT. YOU NEED TO ENSURE THAT THE PROSPECTS ARE WRITTEN UP AS DECISIONS ARE MADE IN THAT MEETING. After the orginal attempt at chairing the meeting – little has been done to progress this objective. I am not aware that Devan has chaired any meetings. This is despite my clear messages to the team and Devan that he is an SBJ and has the SBJ authority etc.
According to Mr. Aspinwall’s note, the Claimant did not chair any meeting after 10 June and could not therefore have chaired a planning meeting on 12 June. In her witness statement Ms Butt gives an account of the Claimant’s inability to chair such a meeting on 12 June, forcing her to intervene (paragraph 6b). In his statement Mr. Aspinwall says he was not present at this meeting, but the Claimant’s failure to chair the meeting was reported to him by Ms Butt. He discussed the matter with Ms Butt and the Claimant later in the day (paragraph 2h). It was put to Mr. Aspinwall and Ms Butt in cross examination that this evidence contradicted Mr. Aspinwall’s note. They insisted the Claimant had chaired a planning meeting that day.
The issue of whether or not the Claimant chaired such a planning meeting has wider significance. In his witness statement Mr. Aspinwall refers to a note at page 404 which he claims is wrongly dated. This note is headed Friday 13th. The same note transferred from another source is at page 411 and again headed Friday 13th. At page 412 there is an email from Mr. Aspinwall to HR manager Graham Poole sent on 10 July 2008. Mr. Aspinwall says, ‘my biggest concerns centres on what happened on Friday 13th June…These are my notes of what happened on Friday 13th June.’ Mr. Aspinwall then highlights this Friday 13th note (slightly amended), and asks Mr. Poole to check the document attached. The next day, 11 July 2008, the Claimant receives Mr. Aspinwall’s ‘Informal Work Plan’ document. It also includes the following comment which is essentially a further amendment of the original note.
Friday 13th June illustrates some of the problems that Devan has faced with the studio production shift. This is the biggest problem that Devan has faced. He needs to be in control on the talkback system – too often the editor has to jump in. He not across all the scripts, audio and ISDNs and fails to direct the presenter and desk driver.
Neila was editing the show. Devan was studio producing when some audio was missing from the system and so wasn’t played on-air. It mucked up the sequence. Devan’s job is to make sure that the audio matched the ENPS script – it didn’t match. Two similar mistakes happened later in the show but fortunately did not get on-air. Devan then blamed another member of team for the first mistake. All of these mistakes had a detrimental impact on the output.
After the show – the Studio Editor asked for a meeting with Devan and myself to constructively discuss what happened. Devan did take a little responsibility in the end and recognised that he shouldn’t have blamed his fellow journalist. Devan cut the meeting short and mentioned that he was going to go home early. I agreed that that was for the best because he looked like he was under so much stress. Afterwards I spoke to HR advisor and one of my managers to express my concerns about Devan’s behaivour that day. I asked Devan if there was anything else that we could do to support him and lessen the stress that he is under. We made sure that his shift on planning on the following week was not altered. I also sent him a list of contacts for people who can provide support and help.
Although changes have been made the date remains Friday 13th. In his witness statement Mr. Aspinwall refers to an email at p 400 to support his account of what happened. This email is indeed sent on 12 June 2008 but makes no mention of the planning meeting mentioned in his witness statement (paragraph 2h).
From: Jonathan Aspinwall
Sent: 12 June 2008 11:23
To: Devan Maistry
Subject: Hi Devan
Tomorrow you’re on a BJ shift and then next week you’re on planning. That will allow you to work on some of the other objectives away from the pressure of a studio environment. I appreciate the work that you are doing at the moment. I know you are trying to take on board the feedback etc. I understand that you’re under pressure.
Do remember that there is a free and confidential counselling service (funded by the BBC) which is provided by BUPA Wellness to provide advice on a variety of issues. Call 0800 269616 or visit the website for more details: http://home.gateway.bbc.co.uk/benefits/main.asp?page=103
Support and practical advice is also available from Ask Al, the ORM Advice Line on (internal) 0464 or (external) 0870 411 0464.
Personal stress awareness training is available through learn.gateway at: http://learn.gateway.bbc.co.uk
And of course I’m always here or on the end of the phone.
You said you had some ideas on the future of the show – would love to hear them when you have a chance…
Under cross examination it was put to Mr. Aspinwall that he had consistently dated the note Friday 13th and this was not an instance in which the error was simply replicated. Mr. Aspinwall maintained that he had made a mistake and his notes and comments about Friday 13 June referred to Thursday 12 June. In a timeline he prepared for the grievance investigation meeting on 25 September 2008 (p 455), Mr. Aspinwall clearly indicates at page 310, separate incidents on 12 June 2008 and 13 June 2008. Ms Butt could not confirm Mr. Aspinwall’s entry for June 13 in this timeline although it records Mr. Aspinwall held a meeting with Ms Butt and the Claimant.
In her witness statement at paragraph 20 Ms Butt said, ‘When Jonathan Aspinwall left Breakfast, we had a handover and he explained the process that was being undertaken with Devan… Jonathan ran through the informal work plan with me at a meeting and then sent me an email on 11 July 2008 attaching this document’
The ‘Informal Work Plan’ referred to above and sent to the claimant on 11 July 2008 was shown to Ms Butt. She said she was not sure if this was the document she had discussed or if it was the document sent to her on 11 July 2008 mentioned in her witness statement. She was shown the original document without Mr. Aspinwall’s comments. She said the layout looked familiar but she couldn’t say for sure. ‘I discussed a plan; I can’t say if it was this one.’ Judge Harding told the Claimant it was quite clear the witness could not remember and the line of questioning was abandoned. It was therefore not possible to establish whether Mr. Aspinwall and Ms. Butt had discussed this note or whether Ms Butt had seen it previously. At 7.42 the Tribunal found that Mr. Aspinwall had in fact provided Ms Butt with a copy of the informal work plan. It gives no reason for this finding.
At any rate the account of what happened given in these Friday 13th notes does not make reference to any planning meeting. It was put to Mr. Aspinwall that the note sent on June 12 and the Friday 13th notes describe different events. He disagreed. Given the reluctance of the witnesses to explain, it was reasonable for the Tribunal to investigate whether these Friday 13th notes were in fact properly dated but diverted to be used as evidence to defend the harassment claim of 12 June.
None of this is included in the judgment but it is significant that the Tribunal finds as a fact the ‘planning meeting’ took place on or around 12 June and not on 12 June as both Ms Butt and Mr. Aspinwall maintain. It gives no reason for this conclusion. No effort is made to investigate why the note (supposedly relating to Thursday 12 June) is consistently dated Friday 13th and why Mr. Aspinwall’s timeline includes a matching entry. Clearly this is an issue that impacts seriously on the credibility of both Ms Butt and Mr. Aspinwall.
It is a ground of appeal that the Tribunal’s acceptance of the reasons for the complaint being dropped, its acceptance without investigation that the notes headed Friday 13th referred to Thursday 12, its failure to address the contradictory testimony of Ms Butt and Mr. Aspinwall and the omission of all this evidence is both biased and perverse.
(ii) Mr. Husaini severely criticizes non-existent interview
At paragraph 6 of her order of 17 June 2011, Judge Hughes set out the deadlines for the exchange of witness statements. They were to be mutually exchanged by no later than 18 November 2011. Furthermore it stated that, ‘Any supplementary statements shall be mutually exchanged by 9 December 2011. Those further statements shall be limited to commenting on matters arising for the first time in the primary witness statements.’
The Claimant submitted his supplementary statement, addressing only matters arising for the first time, on 9 December 2011 and the Respondent confirmed it would not be serving supplementary statements. In his supplementary statement the Claimant addressed an allegation made for the first time in Mr. Husaini’s witness statement that the Claimant wished in 2007, ‘to broadcast an interview called ‘Last Man Standing’ with William Rodriguez, which focused on conspiracy theories around 9/11.’ Mr. Husaini said at paragraph 6 of his witness statement that Mr. Rodriguez’s basic thesis, ‘that the American government had demolished the twin towers with explosives to synchronise with the crashes of the aircraft seemed implausible.’
At paragraph 5 Mr. Husaini said he had listened to the interview and then researched the matter, reading many pages from a document produced by Mr. Rodriguez.
He concluded, ‘it would be potentially offensive to broadcast Devan’s interview as it stood… Devan had asked Mr. Rodriguez to simply present his theory…he had not challenged him or raised any possible objections. This is not how a good BBC interview should be.’ At paragraph 8 he said he gave feedback to the Claimant who was unable to argue or defend the piece, ‘and I would have expected him to have done so as an SBJ, if he believed it was something our audience would be interested in.’
In his supplementary statement the Claimant denied he produced or proposed for broadcast ‘The Last Man Standing’ interview, that Mr. Husaini could not therefore have heard this ‘interview’, and that his criticism must be entirely fanciful. The Claimant recalled that Ishfaq Ahmed, the Drive Editor had invited Mr. Husaini in early 2006 to listen to preliminary interviews with theologian Dr David Ray Griffin and author Nafeez Ahmed. Mr. Husaini was also given an analysis of the fires in WTC7 and its collapse written by Dr Griffin. A series of documentary reports was subsequently proposed as is mentioned in paragraph 4 of page 653 to which Mr. Husaini refers.
The Claimant concluded in his supplementary statement that, ‘these ‘9/11 reports were sent to Mr. Husaini in March 2006. They attracted no further comment and the claimant assumed they had been spiked. Mr. Rodriguez is just one of a host of contributors to the documentary. In any event, there can be no confusion between a series of documentary reports and an in-depth interview. Permission will be sought to include the ‘9/11’ documentary and other audio to support this point in the bundle. Emails on page 1526 and pages 1528-1533 confirm the above sequence of events.’
On 12 January 2008, more than a month later after the date for exchange, the Respondent lodged a supplementary statement by Mr. Husaini, amending his original statement. At a telephone CMD on 16 January Employment Judge Monk confirmed the statement could be relied upon despite the Claimant’s objection.
In his supplementary statement (paragraph 3), Mr. Husaini accepted the Claimant was correct and that an interview with Mr. Rodriguez was not discussed in 2007. At paragraph 4 he says that when he referred to ‘The Last Man Standing’ interview he should have referred to the preliminary interviews with David Ray Griffin and Nafeez Ahmed mentioned by the Claimant. He says he remembers listening to one of these interviews and reading many pages by the interviewee on the subject. He claims he confused the interviews because Mr. Rodriguez held similar views about the 9/11 attacks and had written a book ‘Last Man Standing’.
Mr. Husaini was never sent the interviews with Dr Griffin and Nafeez Ahmed as he could not commit to listen to them (p 1528). He actually listened to a few clips from these interviews in a recording studio with the Claimant and Mr. Ahmed. These clips were being played to him by Mr. Ahmed to illustrate the possibilities of critical and credible voices that could be used together with official views to sustain a week of debate on the Drive program in line with greater editorial ambition.
The Claimant thought it would be helpful if Mr. Husaini read an account of the destruction of WTC 7 which was not hit by a plane. This was offered because the official investigation had suggested it might never be able to adequately explain the collapse but also to shift the focus away from crude ‘conspiracy theories’ and encourage Mr. Husaini to keep a more open mind. This analysis showed that the impact of the fires in the building was limited and that features of the collapse were characteristic of implosion. In his response at page 1530 Mr. Husaini talks about the government flying planes into buildings and blowing them up. This is clearly unrelated to the material he was given to read.
From: Husain Husaini
Sent: 01 February 2006 11:28
To: Devan Maistry; Ishfaq Ahmed
Subject: I read
the document you gave me. I’m sorry if you aren’t going to like what I think.
I’m afraid I am far from convinced.
I am not a structural engineer so I can’t really argue with much of what he says but I find some of his arguments contradictory. Particularly about molten steel and horizontal matter flying out of the buildings.. I could tell you my thoughts if you want them.
More importantly is that his alternative theory seems to have no evidence to support it. It also begs even more questions than the official version.
Why would the government fly planes into buildings AND blow them up? Belt and braces?
Why would the government not worry about killing thousands knocking the towers down BUT worry enough about them falling sideways so much that they would be willing to employ specialist explosives experts to blow them up
Why would the government risk a covert operation that would have to use many many people all of whom could leak. Particularly as he seems to suggest that some emergency services KNEW about the explosives and particularly once those involved realised how many people they were going to kill.
Why are there no witnesses to people going into the building with explosives…it can’t be that easy to stick tonnes of dynamite in a busy public building.
But strangely it’s his theories on building 7 that are most damaging to his case. Why would the government blow up building 7 at all? Let’s face it few people will have heard about it. They had no need to so why take the extra risk of another massive explosives operation. Surely it is far more plausible that it was the knock on effects of the twin towers falling on top of building 7 that brought it down.
My view is that to run these interviews would be a mistake and would make our network look credulous. Please consult me further before you consider using the material. ‘
Despite this straw man response, replete with contradictions, Mr. Husaini agreed tentatively to consider a documentary on the subject. At page 1528 the Claimant reports the outcome of his negotiations with Mr. Husaini to Mr. Ahmed. The Claimant summarizes, ‘what we are looking at is why the movement to re-open the 9/11 enquiry is growing despite the publication of a substantial official report purporting to explain what happened on that day.’
Mr. Husaini was later sent the ‘9/11’ documentary. In his supplementary witness statement at paragraph 5 he says, ‘I invited Devan to present a piece for me to consider. I cannot recall if Devan ever did follow this up.’
In cross-examination Mr. Husaini was taken to an email exchange with Mr. Ahmed at page 1532. He was asked whether his response to Mr. Ahmed was appropriate or relevant.
From: Ishfaq Ahmed
Sent: 08 September 2006 13:43
To: Husain Husaini
It’s 9/11 on Monday – I’d like to do the following hits on it …
1600 Taleet Hamdani from a group called Peaceful Tomorrows. Taleet is a woman of Pakistani origin who lost her son in 9/11. She doesn’t believe in the official version of events and wants an inquiry into what happened.
1700 Frank Gardner – is the war on terror being won by US and America
1800 Member of the 9/11 commission on the thoroughness of their investigations against a member of an interfaith group on what they say are questions still unanswered.
By the way – Devan has had no input into these thoughts! Let me know what you think …
From: Husain Husaini
Sent: 08 September 2006 14:01
To: Ishfaq Ahmed
Subject: RE: Monday
i think it’s fine to say to someone…
“there are of course lots of conspiracy theories.. some academics in america even say this was an inside job and the americansdeliberatly blew up the twin towers themselves..and the plane attack was just a front… what do you think about these kinds of theories”
to either Frank or the commission person..
and then you can hear them laugh like a drain …
In June 2007 the Claimant responded to an email in which he was specifically and unnecessarily cited by Mr. Husaini.
From: Husain Husaini
Sent: 15 June 2007 06:53
To: Pamela Gupta; Asian Network Breakfast; Asian Network News
Subject: Re: 9/11 LAST MAN OUT | WILLIAM RODRIGUEZ
As Devan and anyone from the mornings team will tell you I get quite exercised by 9-11 conspiracy theories….
If you ever want to do anything on them give me a shout first…
He may have rescued a lot of people but it doesn’t change the facts…
From: Devan Maistry
Sent: Wed 20/06/2007 09:09
To: Husain Husaini; Pamela Gupta; Asian Network Breakfast; Asian Network News
Subject: FW: conspiracy theory: Last Man Standing
‘Husain attracts attention to the perils of reporting 9/11 conspiracy theories. Here are some thoughts on an issue which can divide and impoverish newsrooms…’
The Claimant’s reply to Mr. Husaini at p 654 to 658, was read by the Tribunal. The Claimant suggested that even when dealing with controversial issues, the BBC’s established practice of meticulous investigation and accurate reporting should be the standard response.
The Tribunal at 7.12 found the Claimant, ‘wished to broadcast two interviews which focused on conspiracy theories in relation to 9/11, and in particular on the theory that the American government was responsible for the attacks and had arranged to blow up the twin towers with explosives at the same time as crashing two aircraft into the buildings. Mr. Husaini considered that the claimant showed poor editorial judgment…’
There is no evidence that any interviews were produced for broadcast or that the clips Mr. Husaini heard advanced the conspiracy theory he describes. In any event he says he only heard one of the interviews. It has already been shown that Mr. Husaini raised the same straw man argument in his response to Mr. Ahmed as he did when sent an analysis of the collapse of WTC 7. Moreover in February 2006 the Claimant was in charge of the Language programs. The output of these programs is in South Asian languages. It would have made no sense for the Claimant to approach Mr. Husaini to broadcast interviews in English.
The Tribunal says, ‘Mr. Husaini had changed his evidence, but only to the extent that he accepted that the interviews were with Dr David Ray Griffin and Nafeez Ahmed, not William Rodriguez. For the avoidance of doubt we do not consider this in any way impacted on Mr. Husaini’s credibility. He admitted his mistake, which we consider to be a minor one, particularly given that he was having to recall an incident that, by the point of drafting his witness statement, was several years old and he remained consistent on the remaining facts relating to the incident, which were in any event consistent with the emails referred to above at pages 1528 – 1531.’
Any consistency with the emails would have derived from Mr. Husaini reading them before drafting his changed statement to meet the Claimant’s challenge. He did not admit his mistake until he had received and read the Claimant’s supplementary statement. He still maintains Mr. Rodriguez wrote a book called ‘Last Man standing’, although this is untrue. Mr. Husaini was under no pressure to reinvent this incident which was never raised as a performance issue previously. The only suggestion that the attacks were orchestrated by an amorphous American government, or indeed Americans, comes from Mr. Husaini himself.
He says in his witness statement, ‘Devan refers to this (the Last Man Standing interview) in his grievance latter to Rachel Avenell dated 21 September 2009 at page 653. He states that it has been suggested that he is not capable of finding stories to satisfy the Asian Network and refers to this example as evidence that this is incorrect’.
At page 653 the Claimant says, ‘A story of particular and obvious importance to our listeners concerns the numerous anomalies and inconsistencies in the official 9/11 narrative. Ishfaq Ahmed, the then editor of the Drive Program was keen that we canvass the issue and suggested a series of documentary reports.’
Quite clearly Mr. Husaini is addressing the 9/11 documentary which was sent to him and which featured Mr. Rodriguez. Mr. Husaini at paragraph 10 of his witness statement says an email he sent at page 328, ‘does not imply that Devan is a conspiracy theorist and this was not my intention at all.’ As the judgment shows, his testimony has established that to the complete satisfaction of the Tribunal, without a shred of proof.
Pertinently, Mr. Husaini’s criticism of the ‘Last Man Standing’ interview is by far the most serious attack on the Claimant’s journalistic reputation. It is delivered with assurance and certainty, and allegedly only after serious listening, painstaking research and careful thought in 2007. It is remarkable that the Tribunal concludes this aura remains undisturbed.
It was not possible to press Mr. Husaini in cross- examination, on the inconsistencies in his evidence, as the Tribunal informed the Claimant that Mr. Husaini’ had provided an explanation in his supplementary statement. It is also remarkable that Mr. Husaini could claim to have heard interviews prepared for broadcast by the Claimant when it is the Respondent’s contention that the Claimant was unable to edit a basic package or record an interview.
It is a ground of appeal that the Tribunal’s conclusion that Mr. Husaini’s credibility was unblemished, given the evidence presented, is perverse and the acceptance of his claims reflects extreme bias.
(iii) Presenter abuses guests and blames Claimant
In her witness statement at paragraph 10, presenter Sonia Deol (real name Jeffie Sidhu) says,
‘As for 3 March 2010, I had left for lunch quite late and, as I left the building I noticed Devan speaking to the security guard. When I returned from lunch, (which is normally an hour) I noticed that Devan was still speaking to the security guard. I knew that all the other Producers were, at that time, busily preparing and setting-up other shows. The team had also been telling me that they had been frustrated with the lack of work Devan was doing. This prompted me to go up to Devan and ask him to come over and have a word with me. When he came over, I asked him ‘what have you done all day?’’ When he asked what I meant I said, ‘don’t get offended, I am curious as to whether you have set anything up today, as there are two people working upstairs and you are part of this process.’ I recall Devan did not say anything but pulled a face and walked off to the security guard.’
At 7.81, the Tribunal accepts the above as a finding of fact, leaving out the words highlighted in red. The differences are important because the Claimant attempted to cross-examine Ms Deol on the basis of an email he had sent to Khaliq Meer, who was overseeing the program in Ms Butt’s absence.
From: Devan Maistry
Sent: Wednesday 03 March 2010 13:54
To: Khaliq Meer
Cc: Neila Butt
Subject: For the record:
I left the office at 1.20 pm …spoke to Tom (from To buy or not to buy) at the revolving door for a couple of minutes…then spoke to Basil (security) downstairs for about six or seven minutes.
Sonia came by..said she wanted to speak to me. Told me she had seen me speaking to Tom and Basil. She wanted to know whether I was doing any work for the program. Said she was not sure what my role was. I said she would need to talk to my line manager. For the record, I was on a rarely taken lunch break.
This email showed the Claimant had been away from his desk for about half an hour and that Ms Deol had not left for lunch ‘quite late’ but about the usual time. It showed she could not have seen the Claimant an hour later as she describes. Ms Deol was evasive when the Claimant tried to establish the time she had left the office and the judge observed it was clearly futile as the witness did not remember. The Claimant desisted as he thought that Ms Deol’s lack of credibility on this issue had been established. This email and the fact that it clearly undermines Ms Deol’s evidence are not mentioned in the judgment. The inconsistencies do not appear in the Tribunal’s finding.
It is a ground of appeal that the omission of this evidence is perverse and biased.
At paragraph 12 of her witness statement Ms Deol says, ‘There was another incident with Devan, around May 2010, when I had to apologise to a guest on the show. Devan had set up a piece about parents in education. I had understood that the guest Devan had set up would speak about this from a national point of view; however the guest wanted to specifically speak about a local scheme. As a result, the guest left the show quite upset as she felt I had not allowed her to talk. However, because we were a national show, I had to press her on this angle. I have never had a guest leave unhappy before. When I spoke to Neila about this, it was clear that the way the guest had been set up by Devan was inaccurate and it was no surprise that she had become upset. I had to send the guest an apology as a result.’
The Claimant responded to this in his supplementary statement as it was a matter arising for the first time, and had not been raised as a performance issue previously. He said Ms Sidhu had suggested the guest and that Ms Butt had tasked him with fixing the interview. In cross-examination Ms Deol was taken to the guest’s letter of complaint forwarded by the Claimant.
From: devan maistry [mailto:firstname.lastname@example.org]
Sent: 12 July 2010 20:58
Cc: email@example.com; Neila Butt; Devan Maistry
Subject: Fw: BBC Asian Network: Sonia Deol 1100 May 26
I have been asked by Nasreen Rajabali to resend her letter of June 3 to you. She complained to Neila – at the office – about the manner in which she was interviewed on the Sonia Deol Show on May 26. She did not hear from Neila as promised and wrote to me asking for your e-mail addresses. She subsequently wrote to you and Neila on June 3, copying me in. It would be useful – and courteous – to let Nasreen know that we have received her complaint and are in the process of dealing with the matter. If it is necessary to address her complaint elsewhere we should provide a contact name and address.
—– Original Message —–
To: ‘devan maistry’
Sent: Monday, July 12, 2010 11:12 AM
Subject: RE: BBC Asian Network: Sonia Deol 1100 May 26
I have been waiting to hear from Neila Butt and Vijay Sharma for now about over 3 weeks. On the day of the interview I spoke the Neila in your presence and I was pormised that I will hear from her regarding the ssue. I have till today not heard from her.
Subsiquently I emailed the 2 people mentioned above a letter but I have till today got no reply.
I am now writing to you to as you were my first point of call when this whole drama started. Could you please make sure that the people above get my letter atttached and also send me the name of the Directior and a contact email to write to.
I hope you will as efficent as you were when you were trying to get us to come to the interview. I hope to hear from you soon.
BBC Asian Net
Dear Ms Butt,
RE: Interview for Strengthening Families Strengthening Community (SFSC) programme on 20th of May 2010
Following our conversation after my radio interview on the BBC Asian Network, I was promised by yourself, that you would contact me regarding the incident with Sonia Deol. As you are aware, my colleagues and I felt extremely insulted and disrespected by the way we were treated by a so called ‘professional.’
It has been two weeks and I am still waiting to be contacted. It seems that you do not care about how we were made to feel, and that you have no awareness of customer care.
The fact that we were invited to talk about the ‘Strengthening Families Strengthening Community (SFSC)’ programme that I run, would suggest that there would have been a clear format of how the interview should have been conducted. I was contacted by telephone prior to the interview by Devan Mistry, who kindly explained what would happen on the day and during the interview. He sent me a number of questions which were all related to the SFSC programme, and I was informed that this was done so that BBC can make sure that the guest invited knows what they will be asked, and hence what they will be talking about.
We all came well prepared for the Interview , and so I was rather shocked that when we got into broadcasting room, Sonia asked her colleague, why we were there and what this was all about. Her colleague replied with no knowledge or the background understanding of SFSC programme, and proceeded to introduce me to Sonia as if I were some kind of ‘super nanny’ character. I interjected their conversation, to tell them this was NOT the case, but Sonia paid no attention to what I had said, and quite frankly I was shocked to see the ignorance on their part.
We did not ask to be interviewed by BBC Asian Network, but we were INVITED to talk about a programme, that is making a positive difference in peoples lives , both personally and on a community level, and so the fact that we were not even able to finish our sentences before we were interrupted or cut off , was extremely frustrating.
We were not given time to settle into our seats, we were given no assistance with our headsets even though they continuously falling off our heads and we were not asked if we were ready or if we were ok! As the interview had begun, and Sonia asked her first set of questions , she pulled faces as we spoke , waving her hands on top her head or in front of her face hence making us feel very nervous as we did not understand what she wanted us to say. I am aware there may be some sort of ‘radio sign language’ but without clear explanation of what these mean, how are we expected to know.
It was apparent that Sonia Deol , had not taken any time to understand or even enquire about the SFSC programme prior to the interview with us, nor did she give us enough time to even explain or talk about the programme in any way let alone in any detail during the interview. So my confusion extends to how she felt it within her rights to coin the SFSC programme ‘dull’ on National radio, as well as informing us that we were not there to promote the programme but to talk about parenting.
Having had the pleasure of being on the Ed Dolan show prior to this, our experience was entirely different. We felt welcomed and comfortable as the format for the interview was explained clearly to us. We were informed about the type of questions that will be asked and Ed Dolan was on the spot about asking these questions with no confusion at any point whilst we were answering them. The feedback from the show was amazing and the awareness of SFSC programme has been heightened, and we hope that people are able to benefit from this wonderful programme.
I expect a personal apology from Sonia Deol for her ignorance, clear lack of respect and for way my colleagues and I were so rudely treated and spoken to. I have never been spoken to like this before in my 30 years of working with so many different people and organisations
I hope you will attend to this matter as soon as possible, and I look forward to hearing from you very soon.
Ms Deol was questioned at length by panel member Mr. P Barley about how she could blame the Claimant for her behaviour. She was cross-examined about an incident the next day in which a guest was also upset about the way in which she was interviewed. Evidence was put before the Tribunal at page 1214 of the dismissive way in which Ms Deol treated guests. It is also clear from the complaint that the guests were shabbily treated even before the interview began. The correspondence also shows that for at least six weeks Ms Butt ignored the complaint. Ms Deol was hostile under cross-examination and had to be reprimanded by the judge. None of this is mentioned.
Instead at 7.84 the Tribunal says, ‘The guest left the show upset and subsequently complained. Her complaint was primarily directed at Ms Deol, but Ms Deol’s evidence, which we accept, was that the guest would not have known that it was a mistake in relation to the way the guest was set up which led to the manner in which the interview was conducted.’
At 7.85 the Tribunal finds that this incident was discussed with the Claimant on 28 May 2010. There is no evidence for this finding. Ms Butt’s note at page 897 says she had discussed this with the guests and concluded they were very nervous and had changed their mind once they got on air and she was not going to discuss this with the Claimant at the meeting. The Claimant’s email to Ms Butt following the meeting at page 899 does not mention this incident as one of the issues raised at the meeting. The Claimant’s email at page 900 shows that Ms Deol claimed the guests were not up to standard, not that the interviews were wrongly set-up. Ms Butt had commissioned the story at the request of Sonia Deol as mentioned in the Claimant’s supplementary statement. SFSC is a national program under the auspices of the Race Equality Foundation. Ms Butt asked for two guests, one to talk about SFSC as a national program targeting parents, the other to share her experience as a parent enrolled on an SFSC course. Both of these guests ,Ms Rasjabali and Ferzana, complained to Ms Butt during the discussion she mentions. It is also clear from Ms Rajabali’s complaint she is speaking for both of them. The ‘mistake in relation to the way the guest was set up’, was never raised as a performance failure despite its extremely serious consequences.
It is a ground of appeal that the finding that the Claimant was to blame for Ms. Butts behavior is both perverse and biased.
At 7.80 the Tribunal accepts as fact Ms Deol’s account of an incident on 2 March 2010 in which the Claimant alleges she shouted at him to ‘get out of the studio’. The Claimant said in his witness statement at paragraph 41;
‘On 2nd March 2010, it was announced that the Asian Network itself was to be closed down. A teleconference was scheduled at 11am to address staff. Ms.Butt asked me to go into the studio from 11am so that the producers could attend the meeting. Sonia Deol, the presenter was clearly upset by the news and was crying in the studio before the program went on air. There were production problems even before I went into studio. The producers had simply failed to prep the program. Shortly before the program ended I went into the studio to confirm Ms.Deol was familiar with the handover to the next program. She finished reading out the end of an email then turned around and told me to ‘get out of the studio!’. I was stunned. As she had been crying earlier I thought something was amiss and went to get help. I was asking one of the producers to come to studio when Ms.Butt emerged from the meeting and proceeded to the studio. I heard her greet Ms. Deol in the corridor. At a volatile debriefing I was blamed for leaving Ms. Deol alone. When I explained the circumstances I was told I should have known Ms. Deol didn’t like having people in the studio. I asked for a meeting with Ms. Butt and explained the situation. She said I had ‘made the right call’. She then sent out an email saying she was going to be away till Monday, 8th March 2010, and informing the team of tasks I would be looking at.’
This issue was canvassed at the 2nd capability meeting on 18th May and the Claimant relied on his statements and clarifications as some evidence in support. The Tribunal has given its reasons for leaving this out of account. In cross-examination Ms Deol confirmed this incident took place as the program was about to end. It was put to her that in her witness statement at paragraph 8 she claims to have said ‘just go’ or ‘just leave Devan.’ At paragraph 9 she claims, ‘therefore, I told him to go and find somebody who knew what to do because this was urgent and Devan was just telling me he could not do it.’ It was put to Ms Deol that she was contradicting herself.
The Tribunal makes no mention of this in its finding at 7.80. It is a ground of appeal that this is both biased and perverse.
(iv) Ms Butt forgets
It is a ground of appeal that the following finding made by the Tribunal is both biased and perverse for the reasons outlined below.
A 7.53 the Tribunal finds, ‘On 11 May the claimant sent Ms Butt an e-mail complaining that throughout the proceedings he had asked for issues of victimization, marginalization, bullying and the bringing of unfounded allegations to be investigated but there was little evidence claims were being investigated with the seriousness they deserved. He stated it would be useful to send him a list of the allegations she intended to raise so that he could come prepared and he suggested that there were managerial shortcomings which should be addressed, pages 567-589. Ms Butt responded by e-mail saying she would be in touch, however the claimant then went sick from 11 May to 2 June. Ms Butt did not then follow through on a response to this email once the claimant had returned because she forgot. Neither the claimant nor his union representative chased Ms Butt for a response.’
At paragraph 6(c) of her witness statement Ms Butt says, ‘ I deny ignoring Devan’s letter dated 11 May 2009. I discussed this letter with Devan in a meeting following this date. However as the majority of the content was in relation to events that occurred before my time and had been decided upon by Andrew Thorman (Head of Rural Affairs (Audio Music and Factual) in the grievance outcome and Laura Ellis in the appeal outcome, I could not comment any further.’
Ms Butt was taken to the document at pages 587-589 in cross-examination.
Further to our meeting at which Husain Husaini was present on Friday I’d like to note the following.
I’ve now been informed that an informal work plan/plan of improvement is to be instituted beginning on Thursday May 14. This follows a recommendation by Laura Ellis that I be reviewed against the specification for the SBJ post at the Nikki Bedi program. I agreed to let you know my response by then.
In the interim I’ve had cause to speak to my doctor whose has put me off for two weeks for the anxiety and panic attacks that are being triggered by the stress of this dispute.
I do not like being away ill leaving others to manage an increased workload. Colleagues can attest to the long hours I have put in while managing the language programs, producing the network’s then only documentaries, scheduling our religious coverage across all programs – including directing OBs and religious specials –and dealing with our social action desk, all at the same time.
It is disappointing that I have been reduced to this state of ill health, worry and misery – and now suffer skin problems of a completely different order. You are of course aware that since last April when I was compelled to attend a formal capability hearing I have been involved in a grievance and appeals process. My appeal was dismissed.
Throughout those proceedings I have asked that issues of victimization, marginalization, bullying and the bringing of unfounded allegations of incompetence that are seriously affecting my health be investigated. Despite a documented history of what I consider ill treatment, the appeal hearing dismissed these pleas for help. There is little evidence that these claims were investigated with the seriousness they deserve given the BBC’s stance on bullying and harassment.
Last year you will recall that I asked to be excused from a meeting with you and Jonathan. I said I was being bullied and further that when I was previously treated in similar fashion, in front of the team, Jonathan had done nothing to stop the humiliation. One of the instances to which I referred was an occasion when you told me: ‘I’ve told you three or four things now. Do you think you will be able to remember?’
When I made no reply you asked: ‘Do you want me to tell you again, or are you sure you’ll remember?’ You then turned to the rest of the team and said: ‘I’m sorry if I’m acting like a school teacher but sometimes it’s necessary’. It was of course completely unnecessary.
I’m bringing this up because I’ve learned that the regular nit-picking I’ve endured is intensified ahead of assessments/work plans/capability meetings to accumulate as much ‘evidence’ as possible to bolster management’s claims of incompetence. Some of the detail obtained and used as ‘evidence’ – under extremely trying circumstances for me – suggests sheer desperation to prove a point rather than fairness.
I am hoping this will not happen this time around and that the program will come first. You and Husain have assured me that you are both genuinely acting in my best interests in order to help me improve my performance. I have no reason to doubt that is what you both sincerely believe.
I have been through a formal capability process. As I understand it this is going to be followed-up by implementing an ‘informal’ six- week work plan. There have been difficulties in the past in interpreting the agreement under which the capability process has been conducted. The appeal decision concluded that management had indeed followed the process faithfully. Although the argument made to support this view is contradictory I cannot respond as that decision is final. I think in order to obviate such further difficulties, which are both time-consuming and tedious, I will ask the NUJ for advice on the matter.
I think – and I may well be wrong – that this latest process may be conducted under a new capability agreement/policy. I will also ask the NUJ about this.
At Friday’s meeting you mentioned that this latest process would begin with further allegations of poor performance, this time on the Nikki Bedi program. It is management’s prerogative and duty to improve staff performance and maintain high production values. However as I had not been notified of such issues previously I did not think it appropriate to discuss them at short notice on Friday.
By way of explanation, at the capability hearing in April last year I was told that I had not completed an appraisal although I had submitted it five months previously. I needed time to find proof. Fortunately I was able to retrieve the e-mail itself and show that management was wrong. It would be useful therefore to send me a list of the allegations you intend to raise so that I can come prepared and give you the most complete answers to the best of my ability and without delay.
My experience also is that some allegations made in the past have been completely unfounded. Even though they are proved to be untrue, or later dropped as charges I feel this prejudices the process of improving performance. For instance I was held responsible for a libel made on-air. After I said I had not been in the studio or the building when this was alleged to have happened the matter was not raised again. There was a story about an Asians Love Xmas T-shirt campaign that you asked me to set-up. With regard to this story I was accused of inviting a BNP spokesperson into our studio. I claimed this charge was vacuous and the appeal process has not challenged my view.
Here is an example of the sort of allegation I do not believe can be raised fairly. Quite soon after I joined the Nikki Bedi program and as I was preparing to produce the program for the day you questioned the accuracy of a cue. The point at issue was that I had described FindAnyFilm.com as a search engine for films. You called me to your desk and said that as it was not Google or Yahoo it could not be a search engine. I tried to explain that Yahoo and Google are not the only kinds of search engine. I also explained it was the way the UK Film Council had described their new site. You then asked me to show you the press release which I did. You still maintained that the description was wrong adding that the UK Film Council was only using the term search-engine to sell the site because they wanted publicity. I didn’t see the point of arguing the matter any further.
Unfortunately it didn’t end there. You went to Nikki to get her to change the cue excising the search-engine description. And it didn’t end there either. You came into the studio and told me that I should take a look at how Nikki had rewritten the cue and learn. For the record it was a good interview and the Film Council was accurate in its use of the term search-engine. Here’s what it says about FindAnyFilm on its website. ‘We’re also committed to becoming the UK’s most comprehensive film-watching search engine, with an ever-increasing number of titles and a wide choice of reputable retailers.’
I believe there are other reasons for this performance. It’s an issue I raised very confidentially with Jonathan wanting to help.
A second reason for giving an example of the kind of allegation it would be counterproductive to discuss arises out of a response you made at Friday’s meeting. You asked about my performance on the program and I said I had produced the last two ‘ Nikki Meets’ interviews and that you and the team thought they were good. You then said Ranjit does much more. I do not think this deserves further comment.
What does is the inconsistency with which performance issues are treated. Compare the fuss raised quite unjustifiably about the FindAnyFilm interview with the following dereliction. A member of our team responsible for an hour long segment of the show fails to make sure its ready for broadcast and Nikki has no option but to fill for an hour. I do not know what action you took but it would be worth comparing with your approach to the FindAnyFilm cue.
Here’s another example: Audio for a lengthy pre-record is put into the running order. Nikki finds out while on-air that the audio has actually been split into two parts. There are no ins or outs, or timings for either section, no back anno for the first and obviously no cue for the second. I managed to fix all that minutes ahead of broadcast. Nikki irately raised the issue with you and you defended the journalist.
As I have said there is no reason to disbelieve the sincerity with which you and Hussain are embarking on this review of my performance. The above examples however smack of bias and favouritism and I simply want to urge that we guard against this when it comes to the six-week work plan. I think there is good reason to also consider whether there are managerial shortcomings which we can address in the best interests of the BBC – to whose ideals I remain strongly committed.
This last point is raised in the light of the number of times I have been asked by management about whether I consider myself a good journalist. When Hussain asked me this question on Friday I said I thought I was better than many others at the Network. I should really have said I was more experienced but of course I was under pressure and on the defensive. Husain’s response was that it was not what some people on the Network thought. I should have asked him who these people were so that we could compare performance.
I find such treatment humiliating although I am certain Husain did not mean to be insulting. It also hurts because quite recently I was called ‘mad dog.com’ by an assistant editor in the presence of colleagues I formerly managed at the Language programs and Alexandra Dalton who is an outside trainer.
These thoughts are offered without prejudice and to enable the review to be undertaken fairly, honestly and productively. Meanwhile I am still seeking counsel from the NUJ as mentioned and will let you know what they advise at the soonest.’
Ms Butt was taken through this document paragraph by paragraph. With the exception of paragraph 6 she was shown that the note referred to matters which involved her directly or should have concerned her. There was also every reason for Ms Butt to know about the grievance and appeal hearings mentioned in paragraph 6. Jonathan Aspinwall had briefed her when she took over from him in July 2008 and Mr. Thorman had recommended she review the Claimant’s performance. She should at the least have provided a list of her latest allegations. The Tribunal makes no mention of this. This failure to give notice of allegations was raised in a grievance submitted to Rachel Avenell on 22 September 2009 in which this letter to Ms Butt was quoted in its entirety. It was also included in submissions to Kevin Silverton and Tarrant Steele.
(i) Praise for the claimant’s work
At 7.4 the Tribunal acknowledges the Claimant was an experienced print and TV journalist when he began working at the BBC Asian Network. It says incorrectly that the Claimant worked in the languages team between 2001 and 2005. (The Claimant says, in his witness statement at paragraph 2, that after a period producing programs from Leicester he was given responsibility for the Network’s religious and social action coverage.) More accurately, the Tribunal finds the Claimant was asked to assist the editor of the Language Programs in 2004/2005 and subsequently took charge and became head of Languages. It notes a documentary series produced by the Claimant, ‘Reports from the Domestic Front’, won an award at the BBC Radio and Music Festival. It incorrectly finds the Claimant produced the Ramadan Reflections series in 2004/2005, when in fact the claimant produced the month-long series of reflections in 2002, 2003 and 2004. The Tribunal finds the Claimant’s promotion to SBJ in 2005 was significant; he was proud to be promoted and thought, ‘he would be given more respect, particularly from junior colleagues.’ There is no evidence for this conclusion. Indeed to indicate the quality of his work the Claimant cited an academic paper published in Sociological Review which referred to the Claimant’s investigative reporting for television (1447). This was deliberate. The Claimant, like most of his colleagues, is well aware that being an SBJ on an ethnic program adds little to a CV.
The Respondent’s perception of the Claimant’s work however is significant, especially in the context of capability proceedings. The Claimant therefore submitted a selection of comments made by Vijay Sharma, the editor of the Asian Network, and other senior BBC journalists to show that till late 2005 the Respondent regarded his work highly. These comments are reproduced because they provide context and undermine the argument given by the Respondent, and accepted by the Tribunal, for its changed perception of the Claimant’s ability.
Unsung Hero: Devan Maistry, Asian Network
Nominated By: Vijay Sharma
Devan is a Social Action/Religious Festival Producer on the BBC Asian Network It’s a role that is as varied as his considerable skills! He has worked across the board from organising our coverage of Ramadan and Diwali to building special strands for the Hitting Home campaign last year. Devan illuminates his work in a way which no other person can at the Asian Network. His Social Action work gives him the opportunity to get underneath and examine the bigger issues – the co-ordination of this work is no easy task! Trying to please every Producer on the Asian Network about his idea and content would be daunting for others but he does it with ease. He always sees stories and issues away from the predictable and the obvious. This is done with humility and an understanding of other colleague’s needs and sensitivities. Devan has lived and practised journalism under Apartheid in South Africa and being pals with the late Steve Biko has given him an understanding of race and racism which very few at the Asian Network can match.
These experiences also give him an edge in the way he is able to pursue and present stories on-air. His arguments are persuasive and enlightening with no sign of ego. He has provided some of the most illuminating programming on the Asian Network but you would never think so, it’s always done with quiet determination and little fanfare! His Ramadan Reflections series last year was interesting, thoughtful and insightful. He was able to provide a political perspective from major Muslim thinkers on the wider significance of the major Muslim festival. It worked brilliantly.
These strengths have led to appreciation and respect from every member of the Asian Network team. He has tremendous negotiating skills, having secured the Asian Network presence at four major Melas in the UK this year at no cost to the Asian Network. These skills are further demonstrated in the way in which he deals with a myriad of conflicts and interests during the coverage of religious events. A final quote really sums up Devan and his impact and contribution to the BBC Asian Network as a whole. ‘Good Producer….Good Professional…Good Man.’
John Lloyd: 09 March
‘I finally got around to listening to your reports on the Asian Network website: really powerful stuff, throughout the week, all underwritten beautifully by your mellifluous narrative…
I’d also like to thank you again for all your help with Taking Care. Thanks to you, by my reckoning, Asian Network put out more hours of programming than any other branch of the BBC over the course of the two weeks of the season, and all of the highest quality.’
From: Perminder Khatkar
Sent: 11 April 2005 19:21
To: Devan Maistry
Cc: Ishfaq Ahmed; Vijay Sharma & Assistant
Subject: Bitter Sweet Harvest
Powerful, informative piece of radio …some serious journalism that asks many questions.
Mixed with wonderful actuality and in quality many thanks for this as I know what you are still up against to produce a further 4 packages.
On 15 July 2005, Mr. Ishaq Ahmed commented on the Claimant’s live production of a 2.5 hour all speech outside broadcast from Leeds following the discovery that the London bombers were from Beeston. It involved the use of multiple studios and contributions from guests on both sides of the Atlantic. Mr. Ahmed and Mike Curtis, as the two assistant editors, were then the most senior managers after Ms Sharma.
Ishfaq Ahmed: 15 July
‘What superb programming at short notice. This was a fantastic team effort and we were again able to tell this story from a uniquely Asian perspective – no-one in the BBC or indeed in commercial Asian Radio could have captured the mood and feeling of this event in the way that it was done on last night’s show. Having analysis from such big thinkers as William Blum gave the show a perspective that again has been missing in much of the BBC’s coverage. The decision not to be strait jacketed by just using Hindi/Urdu was a good one – it meant that language wasn’t a barrier if you wanted to speak in English/Punjabi/Mirpur/Hindi/Urdu – it was just fine. Congratulations once again.’
2005 – 1st August
‘I am delighted to tell you that you have been awarded a bonus of £750 for bringing a truly Asian perspective on the journalism delivered on language programmes.’
Ms Sharma was aware of these and many other favourable comments, to which she attached her usual ‘well done’.
The Respondent’s perception of the Claimant contradicted its claims of lack of capability and undermined its attempts to explain its change of perception. It is a ground of appeal that the Tribunal acted perversely in ignoring these contradictions and reflected bias in excluding evidence supporting the Claimant’s case.
(ii) Transformation in 2005
In his witness statement the Claimant said the Respondent’s change of perception coincided with a process of transformation and evolution at the network aimed at targeting a younger audience.
Paragraph 3 of the Claimant’s witness statement read, ‘In October 200, following his review of the BBC’s digital radio services, Tim Gardam, recommended the Network’s remit be redrafted to encourage greater editorial ambition. He said objectives should be set to enhance innovation and accentuate the difference and diversity of the Network’s programs from its competitors. It should also feature regular current affairs documentary programmes, similar to those on 1Xtra, tackling stories and issues affecting Britain’s Asian communities. There should be better integration into BBC radio management structures to support editorial development and the training of the station’s staff.
In response, in late 2004, Mr Bob Shennan was given overall managerial responsibility for the Network. He initiated an evolution process in which robust debate was encouraged. Despite the emphasis on editorial ambition the agenda was largely about re-branding, targeting the youth market and creating an image to match. The process was intensely guided by market research.
In April 2005 my documentary Bitter Harvest was broadcast but not ‘put-up’ on our website. I accepted the explanation given by Dharmesh Rajput, our interactive editor, who said there had been a problem. The Voices documentary, part of a major BBC survey of the way English is spoken, aired in October and shared the same fate. It had been heard at program review and favourably received.
Meanwhile I was told by Ishfaq Ahmed that Vijay Sharma no longer wanted me to produce Ramadan Reflections and that it would in future only include strictly religious voices. I later discussed the issue with Ms Sharma and suggested that she at least give the new product a different title as it would mislead listeners. My view was that editorial ambition did not have to be sacrificed for communal sop. Despite my entreaty the title stayed the same and some 60 interviews were excised from our website.
In December 2005 a new tier of Assistant Editors was announced to replace the heads of departments. I applied for two of the positions but was not shortlisted. I recall that other SBJs, including Perminder Khatkar, Neerja Sood and Anne Reeves, were interviewed and that Ms Sood and Ms Reeves were eventually appointed. Other journalists were appointed from the ‘mainstream’ BBC, I assumed because of previous experience in revamping and re-launching stations. Michele Paduano, my NUJ representative however felt that management’s decision not to shortlist me was unusual. At both the grievance and appeal hearings he suggested this was a ‘turning-point’.
I was asked to act-up as Assistant Editor until the end of February 2006 when the new incumbent. Mr. Rifat Jawaid could take up the post. On 27 February 2006, Ms Sharma wrote to me thanking me for all my help in running the Network. She said that Rifat Jawaid would now be representing my area of activity and I could concentrate on ‘the editorial’. Meanwhile I contributed to the debate by responding as Head of Languages to a note sent to some of my team from Michael Hill who was managing the ‘evolutionary’ process. He said there was a ‘perception’ that Languages were inferior to the rest of the Network. I explained the serious difficulties I faced but also noted the department was responsible for all the Network’s documentary output, as well as its religious and social action coverage. I did not receive a reply from Michael Hill, Bob Shennan or Vijay Sharma.
At paragraph 3 of her witness statement Ms Sharma says, ‘In 2005, the Asian Network came under the Controllership of Bob Shennan. Following staff away days and brainstorming sessions, in order to evolve and develop the Station further a new schedule and format was created that would engage with the existing and potential listeners and a new staffing structure was put in place. The aim was to use more ordinary voices, enhance listener engagement and facilitate accessibility through using more ordinary contributors and voices.’
At paragraph 12 of his witness statement Mr. Husain Husaini said, ‘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 5Live. The strategy for the Asian Network was to use some of the learning’s 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.’ At paragraph 13 he said, ‘Asian Network was changed to be modelled more closely on 5Live and Radio 1 Newsbeat, embracing a younger, entertainment focused audience and focusing on stories with relevance.’
It was put to Ms Sharma that her fluffy description of a strategy to use more ordinary voices was actually about targeting the youth market as Mr. Husaini affirmed. She said she disagreed with Mr. Husaini.
The Tribunal makes no mention of this intensive consultation process through 2005. At 7.3 it acknowledges Tim Gardam’s report into digital radio stations and its recommendation that greater editorial ambition be encouraged at the Asian Network. It does not mention the recommendation that the network introduce a regular documentary strand, an important detail in this dispute (page 1294).The Tribunal cites listening figures from Michael Hill’s note (Re: Evolution#7) of 4 January 2006 in which he says rightly or wrongly the Language programs are seen as a poor relation to the network’s mainstream English programming. The Claimant’s response to this note, the reason for its inclusion in the bundle, is ignored (1298). It says the Gardam report led to an overhaul of programming but the target audience remained the under 35s. At 7.2 the tribunal finds, ‘The BBC Trust conditions of service required the Asian Network from its inception to aim its broadcasting at British Asians who are under 35. This is because the majority of British Asians are under 35. We do not find the focus on the under 35’s came in as a new approach following the Gardam report, or as part of the 2006 transformation, see below. It was a policy that was already in existence.’
In arriving at this conclusion the Tribunal excludes the evidence presented by the Claimant. The BBC Trust formally came into existence at the beginning of 2007 but issued its first service licence for the Asian Network in late 2006. This identified the primary target audience as British Asians under 35 (page1294). The Tribunal ignored a statement by Caroline Thompson, then Director of Public Policy, issued when the network upgraded to a proper national network and the Government service commitments which heralded a new Asian Network. These documents, predating the 2004 Gardam Report identified the target audience as the UK’s Asian communities, not under 35’s. It also ignored a PR Week UK report published in June 2006 headed, ‘BBC’s Asian Network Gets Youthful Makeover.’ Counsel for the Respondent objected that this was not a BBC document. However it quotes four Asian Network managers including Mr. Husaini (1292). A statement by Jenny Abramsky, then head of Radio and Music was also provided at page 1293. Commenting on Andy Parfitt’s post transformation retention of the Controllership of the Asian Network post she says, ‘From an audience perspective it makes sense that the Asian Network, which provides so much for young British Asians, sits with our other youth stations, Radio 1 and 1Xtra’, (1293).
In his response to Mr. Aspinwall’s 14 January 2008 email, read by the Tribunal, the Claimant describes how age had become the primary consideration in selecting guests and stories. Contributors had to be young and funky and editorial options were narrowed to pander to the youth market. To emphasize the point the Claimant gave the example of how an interview with the then Lord Chancellor, Lord Falconer, was dismissed. In his witness statement at paragraph 9 the Claimant said,
‘In early 2007 Mr.Ahmed was increasingly away. I deputised as usual when others could not be found. In early February 2007 the anti- terror raids on Muslim communities in Birmingham became a running national story. Lord Falconer, the Lord Chancellor, was scheduled to speak in Birmingham about judicial diversity on the bench. However he agreed to comment on the current raids. I thought we had a scoop of sorts. Mr. Husaini said mention of the law would bore our target younger audience and the interview was dropped. I then had to explain why we were turning down a cabinet minister who had tried to accommodate our brief. Not long after the Drive format was scrapped in favour of a music show. Much unhappiness could have been avoided had we been told the show was going to be scrapped.’
At 7.19 the Tribunal finds, ’Mr. Husaini responded by querying whether the ’25 year olds in Hounslow care’. The claimant pointed out that they could take the opportunity to ask a question about the anti-terror operations which were then underway (a subject of interest to the Network’s audience) to which Mr. Husaini responded there would have to be a ‘very boring interview’ about the law first, and that he would rather hear young British Asians discuss it. Mr. Husaini considered that the issue of diversity in the judiciary did not appeal to a wide audience and that it did not in any event provide a sound basis for a good interview if a minister believed he was attending the show to talk about judicial diversity, when the claimant was intending to question him about the anti-terror operations.’
According to this finding the Claimant was breaching the BBC’s ethical and editorial code which insists on straight-dealing. The evidence before the Tribunal was that Lord Falconer had agreed to comment on the raids (1306) and it had been confirmed with Press Officer, Alfred Bacchus (1304), there would be two areas of questioning, judicial diversity and the terror raids, within a five minute interview. The thrust of Mr. Husaini’s response was that this story was not audience focused. He also assumed the Lord Chancellor would only deal with the terror raids for a minute and therefore it was not worth it just to get a 30 sec clip on the news. This is completely contradictory and clearly does not support the Tribunal’s finding.
It is a ground of appeal that it was perverse and biased for the Tribunal to omit evidence of the transformation process, the Gardam recommendation that the Asian Network introduce a documentary strand, and the evidence that it was embarking on a strategy to target the youth market. It is also a ground of appeal that it was biased and perverse for the Tribunal to conclude as it did at 7.19 that the Claimant intended to interview the Lord Chancellor dishonestly.
(iii) Change of perception
At 7.11 the Tribunal finds that until the Claimant’s transfer to the Drive program in April 2006 there had been no concerns with the Claimant’s performance. This conflicts with the evidence given by senior manager Mark Curtis. In his witness statement at paragraph 5 he said he had attended high level meetings during 2005-2007at which, ‘Devan’s name was brought up with regards to his underperforming’. In cross examination he confirmed that these concerns emerged towards the end of 2005. In answer to the Judge he said he was fairly correct these issues mainly started in late 2005. At 7.11 the Tribunal also finds that issues with the Claimant’s performance began to become apparent very shortly after he moved to the Drive program. ‘He struggled with the programme’s requirements, in particular the ability to turn stories around quickly, and the pace of the program which required the ability to give clear and concise instructions and directions to colleagues.’
The Respondent produced no evidence of any complaint by Mr. Ahmed who was the Claimant’s line manager and best placed to make such a judgment. The Tribunal makes no reference to the evidence that led to its finding. However Ms Sharma says at paragraph 9 of her witness statement, ‘In 2006, Devan moved to the Drive program team, and this was where issues around his performance really began to emerge. Drive was a daily News program, which required its SBJs to set-up and execute news stories. It was a more live and reactive format than the languages programmes he had previously worked on.’
She was cross-examined on this explanation for the Respondent’s changed perception of the Claimant’s capability. She could provide no detail. She was taken to the email at page 1289 (Michael Hill Re Evolution 7 # above), sent by the Claimant, which put the output of the Language programs into perspective. It showed that core Language programs actually led on breaking stories. This email was sent to her in January 2006 as part of a process of consultation about the station’s future direction. It described the advances made and the obstacles yet to be overcome at the Language programs. Ms Sharma was asked why she had not responded. She said she recalled seeing an email somewhere but did not necessarily remember it. It was also put to Ms Sharma that the outside broadcast from Leeds, produced by the Claimant, and commented upon by Mr. Ahmed above, was the most ‘reactive’ program produced by the network that year. She said she couldn’t be expected to remember all broadcasts.
In any event the evidence before the Tribunal was that the Claimant had only moved to the Language programs in 2004 in a managerial capacity to help deal with a crisis. The Claimant does not speak any North Indian language and could not have worked on these programs as a producer. As the comments about the Claimant’s work show, he worked across a range of programs, producing shows, outside broadcasts and much else.
Ms Sharma was asked why these performance concerns were not discussed with the Claimant. She said, ‘I don’t believe I would have directly discussed performance concerns. I would have expected your line manager to. I can’t remember instructing the line manager, but I certainly would have expected him to.’ There is no reference to any of this in the Tribunal’s findings or to the fact that the comments refers to programs across the network.
At 7.18 the Tribunal says, ‘We do not find the claimant was marginalized because this assertion is inconsistent with the claimant’s evidence that he was asked to edit the Drive program for a month and a half over the Christmas period.’
When asked about this Ms Sharma said, ‘one can have concerns about your performance- but if your senior is away- you can be quite sensibly be asked to deputise’. It is of course unthinkable that the BBC would exercise such an option on a national, live, news program.
At 7.32 the Tribunal finds the Claimant had missed a potentially significant story which appeared on the front page of the Sunday Times. In his witness statement Mr. Aspinwall at paragraph 22 described this story as perfect for the network’s listeners. This story actually appeared in the Sunday Telegraph, was about Muslim ‘no-go areas’, and was completely without foundation. At paragraph 7.5 of its judgment, the Tribunal makes findings about the role of broadcast journalists. It does not mention that they are also expected at the BBC to be able to distinguish particularly inflammatory stories like these and the appropriate way to report them, if at all. Mr. Aspinwall was cross-examined and he explained the story was important because it was the Asian Network. This story was subsequently thoroughly discredited.
It is a ground of this appeal that the Tribunal is biased in uncritically accepting the journalistic opinions of Mr. Aspinwall.
At 7.12 the Tribunal finds that, ‘Mr. Hussaini very quickly formed an opinion that the claimant was struggling. Mr. Hussaini was particularly concerned about the claimant’s communication skills and his ability to communicate clearly and concisely – an essential skill when working under time pressure.’ At paragraphs 3 and 4 of his original witness statement Mr. Husaini explains that as head of news he was not involved in the production of the Drive program and that his conclusions were drawn on the basis of observations made when he sat in on prospects meetings. At 7.12 the Tribunal also finds Mr. Husaini was concerned about the Claimant’s editorial judgment relating to the 9/11 attacks, a matter already dealt with above.
At 7.13 the Tribunal finds the Claimant had left the Drive program, leaving junior members in charge. The Claimant’s explanation given at paragraph 4(ii) of his supplementary statement is ignored. At 7.14 the Tribunal finds that a defamatory remark was made about a Channel 4 program on a day that the Claimant was in charge of the Drive program. Mr. Husaini spoke to the Claimant about this and no further action was taken. The impression given is that the Claimant had been careless. The incident is described in the Claimant’s witness statement at paragraphs 6 and 7 and the context is quite different. At 7.15 the Tribunal finds the Claimant had not completed an appraisal in 2006, because he did not refer to this in his witness statement, and because he has been able to produce many other documents. Clearly if the Respondent had concerns about performance, as it claims, Mr. Aspinwall would have referred to such a poor appraisal in July 2007.
None of these matters, 7.12 to 7.15, were previously raised or pursued as performance issues by the Respondent. It is a ground of appeal that the Tribunal in ignoring the Claimant’s evidence on these issues showed bias.
Moreover instead of discussing its performance concerns, the Respondent encouraged the Claimant to seek an attachment at Radio 4 in 2006 and offered him an exit package in 2007. With regard to the attachment the Tribunal made the following finding at 7.16, ‘We do not find that Ms Sharma suggested this option to the claimant as a development opportunity, we consider it very likely that Ms Sharma and Mr. Husaini were concerned about the claimant’s performance issues, they considered that long-form pieces (longer features or documentaries) would suit him better and they were hopeful that if he carried out this type of attachment it might lead to other opportunities, thereby negating the need for his performance issues to be tackled. We reach this finding taking into account in particular Mr. Husaini’s evidence that the claimant was ‘a round peg in a square hole. We accept Mr. Husaini’s evidence that this comment related to the claimant’s skills, as opposed to how he was perceived to be fitting in generally, but this nevertheless demonstrates that the primary focus was not about enabling the claimant to further develop his skills, but on trying to find a better fit for the existing skills he had.’
However in his witness statement at paragraph 15 Mr. Husaini makes it clear that he did not think much of the Claimant’s existing skills, ‘Indeed many of his suggestions seemed unsuitable for any general radio audience. I had worked at Radio 4 and World Service and his story choice was often too obscure for those outlets…I question whether even if he worked for Radio 4, he would be able to articulate why an idea should be placed on a news program, which is a core skill needed by an SBJ.’
At 7.16 as noted above, the Tribunal said, ‘We do not find that Ms Sharma suggested this option to the claimant as a development opportunity…’ At 7.17 however the tribunal says, ‘We do not find that Ms Sharma told the claimant that he was not up to the job. We resolve this dispute of fact in the respondent’s favour and we do so primarily because this would have been a difficult conversation to have, and we therefore consider it more likely that Ms Sharma would have taken the easier route of presenting it as a development move rather than telling the claimant about her concerns over his performance.’
If a development opportunity and a development move are much the same thing then the Tribunal’s findings at 7.16 and 7.17 are contradictory. It was also put to Ms Sharma that she could simply have moved the Claimant to the new documentary strand the network was starting. At 7.17 the Tribunal also finds this pilot attachment had not come about because the Claimant had failed to pitch ideas to Mr. Thorman. It says the Claimant’s case was that he had in fact pitched ideas. This is the straw man argument again. The Claimant’s case was that Mr. Thorman asked him for a note setting out his current role and explaining why he wanted to work in Mr. Thorman’s department. This is completely consistent with the contemporaneous documentation provided by the Claimant (emails 10 and 11 at page 1298).
It is a ground of appeal for the reasons given, that the Tribunal’s findings at 7.16 and 7.17 are both perverse and biased.
(iv) Reasonable Investigation
In his witness statement at paragraph 13 Andrew Thorman says, ‘I felt it was important to draw a line under where both parties were and reinstate the process, especially since Devan now had a new line manager in Neila Butt (Assistant Editor’). At paragraph 16 he says, ‘part of the reason was also to draw a line under the performance already undertaken so that the process could be restarted afresh.’
Despite this fresh start the Tribunal is finding on performance claims that now go back to at least the beginning of 2006. Some are made for the first time; others despite their rebuttal, and indeed refutation, reappear.
At paragraph 17 Mr. Thorman says, ‘I only focused on reviewing the capability process that had been undertaken in my investigation and it was not within my remit to consider whether there were in fact competency issues.’ At 7.43 the Tribunal finds the claimant provided a written submission to Mr. Thorman at the grievance hearing in which, ‘he suggested there was the possibility of bad faith and serious performance issues have been raised with little or no substance.’ At 7.44 the Tribunal acknowledges Mr. Thorman, ‘limited his examination of the grievance to the process and whether it had been operated fairly.’ It found that Mr. Thorman was right to conclude the process had been fairly operated. It made no comment on whether Mr. Thorman had been right to exclude the Claimant’s complaint that the performance issues were without substance and that malice should be considered.
In cross-examination Mr. Thorman said he was unaware of a detailed background of ill-treatment provided to the hearing. He also said he had not addressed the issue of malice or investigated the claims of poor performance.
Laura Ellis who heard the appeal gave five examples of performance failures in her Outcome Letter. These were not put to the Claimant and he could not respond as the appeal decision was final. However the Claimant sent his answer to these charges to the NUJ and the Tribunal read this at pages 1393-1398. One of the complaints was that the Claimant had not provided notes of what a guest would be saying. In cross-examination it was put to Mr. Aspinwall that he originally raised this query in an email at 05.07 on 14 January 2008. The Claimant saw this at 05.56 when he came on shift and at 6.01 showed Mr. Aspinwall there were indeed comprehensive notes (page 1398).
The Tribunal mentions another of these complaints at 7.28, ‘ One story related to an item that had been run saying that DEFRA had set guidance that bodies could be stored for 24 hours before being cremated. This was potentiall y an important issue for the Hindu community. The story had come from a non BBC source and Mr. Aspinwall was of the view the claimant should have checked that the guidelines mentioned in the story had actually been issued by DEFRA ,and that consideration should have been given to allowing someone from DEFRA to have a right of reply to the story.’
The non BBC source was Blackburn with Darwen Council who said in a written statement that they would act on government guidelines to stagger cremations to save energy. Peter Hunt director of the Council’s Environment Department was one of the guests; the other was a representative of the local Hindu community. It was put to both Ms Ellis and Mr. Aspinwall in cross-examination that this story was in fact immaculately sourced.
At 7.28 the Tribunal also finds, ‘there was a story about money in Bangladesh which Mr. Aspinwall considered sailed close to the wind in terms of potential on air-libel. Mr. Aspinwall subsequently emailed the claimant stating that he wanted to double check whether he had completed the BBC legal course…’ The Tribunal leaves out of account that when this issue was first raised in July 2007 the Claimant said it was absurd to hold him responsible for a potential on-air libel when he was neither in the studio or building.
These allegations which have been comprehensively refuted were not put to the Claimant. They simply appeared as pronouncements in her Outcome Letter. Clearly there was no investigation in the accepted sense of these performance issues. At paragraph 18 of her witness statement Ms Ellis says, ‘With regards to Devan’s complaints that the issues about his journalistic competency may have been maliciously motivated, I concluded that I could find no evidence to suggest he was treated differently to any member of staff. It was Devan’s case to provide evidence to support malice but he had failed to do so in the meeting and I could not see any evidence in the paperwork.’ In cross-examination, Ms Ellis admitted she had not read the Claimant’s submissions to the capability hearing setting out why malice should be considered – despite being provided with a copy at the appeal hearing – and had not investigated this claim. She also denied reading the ‘Further Concerns’ document as described already, and which provided ample evidence for why this claim deserved serious attention. The Tribunal omits this and simply cites Mr. Ellis’s Outcome Letter in which, ‘she concluded that she could find no evidence of malice and that Mr.Aspinwall had in fact been constructive and supportive.’
In his witness statement Mr. Kevin Silverton, who heard the appeal against the issue of a formal note said, ‘I believe Devan wanted me to review each point of the performance issues but this was not reasonable as I was not there to rule on the performance issues I was there to decide whether his appeal against the improvement note was justified or not.’ It was put to him in cross-examination that it would have been very easy to decide some of the allegations, for instance an allegation of poor performance when the Claimant was actually away from work.
The Tribunal does not mention this.
In his outcome letter of 4 March 2010 Mr. 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.’ He declined to consider any of the detailed responses to the allegations set-out in Ms Butt’s note of 25 November 2009, given as reasons for moving to a formal stage of the capability process.
At 7.79 the Tribunal found, Mr. Silverton ‘concluded that it was not necessary for him to examine each of the performance issues individually and that a view could be formed on whether the improvement note was justified based on an overview of the performance situation.’ It was put to Mr. Silverton in cross-examination that this amounted to assuming the allegations made by management had substance. At 7.67 the Tribunal makes a finding on one of the allegations Mr. Silverton had not thought necessary to investigate. It agrees with Ms Butt that the Claimant had behaved inappropriately and unprofessionally. The details provided by the Tribunal are inaccurate. The following answer sent in writing to Ms Butt, was shown in the Claimant’s submission to Mr. Silverton. It read,
‘At the Oct 16 meeting Neila also accused me of unprofessional conduct. I wrote:
‘You alleged I acted unprofessionally by handing Nikki some background notes and saying ‘I’m sorry but this is not how I would usually have done this’. I explained that I had to give these notes to Nikki at short-notice. I said that I normally would not give a presenter raw news clippings but would ensure that these were screened and cross-checked and that extraneous and confusing material was excised. I would have also organized the information in some order that made it easier for the presenter to shape the interview. I explained that this attention to detail, which cannot always be achieved to perfection under deadline, was in my experience standard practice.
You asked me to explain why I had to give these notes to Nikki so urgently. I said I thought she was going to be away from the office for a couple of days and had to be given at least some material to read before she left. However I now recall why these notes had to be given to Nikki in haste.
The original plan was for me to send her the brief by e-mail. She explained at the meeting however that her printer was a small model and ran out of ink fairly quickly. I joked that it was illegal to print out stuff for the BBC on your own printer. I include this little aside to jog your memory. In those circumstances I put together very quickly the most useful reports/reviews/biopics I could find on Farrukh Dhondy and handed them to Nikki, with my apology. I can’t understand why you should think something as innocuous as this would amount to unprofessional conduct and require a tedious explanation.’
The Tribunal makes no reference to this explanation and one must assume it was rejected like all the Claimant’s submissions for lack of credibility.
In dismissing the issue of malice Mr. Silverton said, ‘Having concluded that the capability procedure was initiated due to concerns with your performance, I then investigated whether there is any evidence of maliciousness, bullying or victimisation. During the appeal hearing, I do not believe you were able to provide any examples of victimisation, bullying or malicious behaviour and I have been unable to find examples of this in the documentary evidence.
In your letter dated 19th January 2010, you claim that “there have been constant efforts to find fault with my work”. When specifically asked to provide examples to support this allegation, you gave one example relating to a query Neila raised with you on the Nikki Bedi show.’
It was put to Mr. Silverton in cross examination that he was quoting selectively. The actual paragraph read, ‘There have been constant efforts to find fault with my work. I was accused of being a radical for reading ‘The Independent’. It was claimed without a shred of evidence that I had invited a BNP spokesperson to our studio. (The Asian girls who were actually booked were called ‘mingers’.) I was blamed for a libel allegedly made on air, although I was not in the studio or the building. Allegations were also made about my work in a lengthy e-mail which management has refused to discuss.’ It was put to Mr Silverton that by selectively quoting the Claimant he had glossed over examples given in the same paragraph. It was also put to him that at the hearing he was told that the vacuous nature of the performance allegations strongly suggested malice. None of this is mentioned by the Tribunal.
Mr Keith Beech heard the Claimant’s appeal against a final warning on 9 July 2010. At 7.90 the Tribunal finds it was reasonable for him to conclude the issue of malice had been dealt with by Mr. Silverton. In his notice of appeal the Claimant said (page 921), ‘the allegations made – as I show below – are false, insubstantial and vacuous. It is demoralizing and soul destroying to have to work professionally in a situation where management is constantly on the hunt for anything that can be used against you. It is a ground of this appeal that such treatment is degrading and dehumanizing and amounts to harassment.’ Despite this entreaty Mr. Beech ignored the Claimant’s detailed responses to these allegations of poor performance made to support a final warning and new improvement plan at 922-936. His investigation focused on the process. The Tribunal makes no comment about this omission or the fact that Mr. Beech had failed to consider three other grounds of appeal, including discrimination as already mentioned.
At 7.96 the Tribunal states its findings in regard to Mr. Steele’s investigation following the Claimant’s appeal against dismissal. It found the Claimant told Mr. Steele he did not improve his performance because he did not think it was necessary. (The Claimant’s clarification is ignored in line with the Tribunal’s reasoning canvassed above.) Mr. Aspinwall satisfied Mr. Steele that the process was started correctly and there was no evidence that this was an act of bullying. Ms Butt confirmed the Claimant had not been proactive in requesting opportunities to studio produce (a matter dealt with below). Ms Avenell confirmed that the complaints of bullying had been investigated by Andrew Thorman and Laura Ellis. At 7.97 the Tribunal found it was reasonable for Mr. Steele to conclude the Claimant had consistently denied that he had performance issues and that there was no evidence of the Claimant meeting the objectives required of him.
At paragraph 25 of his witness statement, Mr Steele said, ‘I asked Neila Butt about Devan’s bullying and harassment claims, and she told me that Devan had never raised any complaints with her. She felt the team was frustrated with Devan and his performance but no one was harassing me. Neila gave me an example of an incident with a presenter called Sonia Deol, but explained she had spoken to Sonia, and I felt this was appropriate action for her to take as the manager.’ This was accepted by the Tribunal at 7.97, although in cross-examination it was put to Mr. Steele that he had been informed in writing of incidents on consecutive days. No mention is made of the fact that under cross examination Mr Steele showed very little knowledge of the capability process he had investigated.
At paragraph 39 Mr. Steele said, ‘I 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’. He was asked how he could make such an assertion when the BBC had broadcast documentaries produced by the Claimant. Mr. Steele said, ‘I can’. Pressed further he simply said, ‘technology.’ In cross-examination Kevin Silverton confirmed there had been no change in the editing system in use at the network and journalists were in any case adept at coping with change. Even without Mr. Silverton’s insight it ought to have been clear to an industrial tribunal that Mr. Steele’s finding that a documentary producer lacked entry level editing skills was impossible on the facts, which included a written acknowledgment by the Respondent of the Claimant’s documentaries it had broadcast, and which were still available on its website at the time of the hearing. None of this is mentioned by the Tribunal.
Mr. Steele’s finding also contradicts the evidence of Ms Sharma. At paragraph 24 Ms Sharma says of her Unsung Hero citation mentioned above, ‘this is evidence that Devan’s strength was long form packages and documentaries and that I supported his interest in this type of program.’ As seen, she also had enough confidence in the Claimant’s ability to encourage a move to Radio 4. Although none of this intrudes upon the Tribunal’s findings it is patent that no real investigation of the performance allegations was ever undertaken.
It is a ground of appeal that the Tribunal ignored evidence that neither the performance issues nor the issue of malice were ever investigated by senior managers, up to the time the Claimant was dismissed. It is a ground of appeal that the above findings constitute bias and perversity.
(v). Ms Butt’s reasons for dismissing the claimant.
At 7.95 the Tribunal finds that Ms Butt concluded the Claimant had not been able to demonstrate he could studio produce despite being given numerous opportunities to shadow studio production. In cross-examination Mr. Silverton confirmed that shadowing had extremely limited value and was generally to enable outside producers to familiarize themselves with BBC studios. The Tribunal found that the Claimant had only completed one day of studio production on 2 March 2010 when there had been serious issues with closing down the studio. The Claimant’s account is omitted. It found that the Claimant could have volunteered to studio produce at any time as the onus was on the Claimant to be proactive to obtain this opportunity. No mention is made of the following entry in Ms Butt’s notes of a meeting on 7 September brought to the attention of the Tribunal. ‘In the meeting Devan asked me when he should studio produce I responded by saying that Devan should be more pro active as this was about improving his performance.’ Clearly the Claimant was not in a position to simply decide when to produce a program. Ms Butt was in charge of allocating shifts and the Claimant worked to instruction. The Claimant has consistently argued that he was marginalised and kept out of studios; it is evident that he was only asked to studio produce on 2 March to enable his colleagues to attend a meeting at which the closure of the network was being announced.
At 7.49 for instance the Tribunal finds, ‘Ms Butt arranged for the claimant to spend some time studio producing and he was then asked to studio produce himself on 2 and 3 February 2009.’ This conflicts with what the Claimant says at paragraph 22 of his witness statement, ‘I was transferred to the Nikki Bedi Show, the arts and culture slot at the beginning of 2009. I was welcomed by the Assistant editor Kuljinder Singh; he quickly arranged training and was keen for me to start producing as soon as possible.’ Mr. Singh was aware it was a new studio with a play-out system with which the Claimant was unfamiliar. He arranged studio production shifts, not Ms Butt. ‘A few weeks later Ms Butt took charge…thereafter I was assigned tasks undertaken by a broadcast assistant.’ At paragraph 27 the Claimant says, ‘I had volunteered to produce on the 31st August 2009 Bank Holiday, as I had not been in a studio for several months. Ms Butt subsequently elected to produce herself but emailed asking me to ensure I was familiar with the technical issues. Alex Fielding subsequently forwarded me an email which shows Ms Butt had almost taken the network off-air.’
To get around the problem of marginalization the Claimant asked to be assessed on the two days in September 2009 when he had produced at short notice, without shadowing and after being kept out of a studio for more than seven months. In her notice of dismissal Ms Butt said:
‘You asked that I use 2 days studio production in September 2009 to assess your capability against this competency. My assessment of these days were noted through my letter to you on 25th November 2009.
On Wednesday 23rd September the studio production generally went well.
On Thursday 24th September the presenter fed back that you were talking in their ear whilst on air and that the news reader’s name was not provided, which was evident on air. You need ensure that the presenter feels comfortable and confident with your studio production and again highlights that shadowing would be beneficial, we discussed these issues with the presenter after the show’
Feedback is provided so that producers can talk to presenters on air. Not providing the newsreader’s name is a common enough error but in this instance was the result of having to script and get a guest up on air at the last minute. This evidence was heard by the Tribunal. The following is left out although it was actually the major issue on the day involving the Rhi Morgan interview already discussed.
‘On the 24th September there had been issues with studio production, I tried to address these immediately after the show with Nikki and yourself. After Nikki left I asked to speak with you, it was very difficult to follow through this discussion as you kept leaving the studio, I would have expected that we would be able to have discussion about this, especially as it had affected the show on air. I also suggested that you should have communicated the technical difficulties during the show with the team who weren’t in the studio who could have helped you.’
This complaint was included in Ms Butt’s list of allegations in her letter of 25 November 2009 and was actually the major issue. It relates to the Rhi Morgan interview on which Ms Butt was cross-examined and which has been dealt with above. It was omitted in Ms Butt’s notice of dismissal after an email chain was produced in evidence showing the Claimant could not possibly be blamed for an interview that ran a few minutes late. It was raised with Mr Steele as an example of how allegations were made and then quietly dropped.
The Tribunal found, also at 7.95, that Ms Butt noted the Claimant, ‘was still not comfortable to studio produce’. Ms Butt’s meeting note of 16 September actually says, ‘I asked directly whether Devan felt comfortable studio producing, Devan said he did not feel comfortable about this particular show.’ In his witness statement at paragraph 10(i), Mr. Steele noted the Claimant had told Ms Butt he felt uncomfortable studio producing. Mr. Steele was referring to paragraph 10 in a document ‘Appeal Heads’ (pages 1208 -1217) in which the Claimant listed a number of features of unfairness, a breach of a basic BBC value, that had characterized the capability process. These ranged from a refusal to hear the other side to inconsistency and arbitrariness. This document was read by the Tribunal and an effort was made to cross-examine Mr. Steele on a number of aspects.
Paragraph 10 of the document dealt with BBC production values. The Claimant described the manner in which Ms Deol, the presenter, usurped the authority of the producer and how Ms Butt simply took instruction. It also noted guests were treated dismissively, a high crime at the BBC. This is a fundamental breach of the BBC’s production code which holds producers responsible for output. It was put to Mr. Steele in cross-examination that a producer might rightly feel uneasy about working in a studio in which BBC production values were ignored. Mr Steele’s candid response was that he was not a journalist. This evidence and the context it provides is ignored by the Tribunal.
The Tribunal found Ms Butt noted that the Claimant had not completed a pre-record (an interview recorded to be broadcast later). It disregarded evidence pursued by the Tribunal that Ms Butt had promised to allocate a pre-record in June 2010 (page 940), in August (page 1043) and finally on 7 September told the Claimant to set-up an appropriate guest himself to pre-record and edit by Wednesday 15th September. (1061). At 7.92 the Tribunal finds Ms Butt was looking for a specific type of pre-record to assign to the Claimant which would test the full range of pre-record skills. This is completely meaningless given Ms Butt merely wanted an interview recorded down an ISDN line, and has never been mentioned before.
In cross-examination Ms Butt admitted that the Claimant had been responsible on the Breakfast program for pre-recording weekly the contribution of Toby Earle, the program’s regular entertainment pundit. Judge Harding was told that this established that the Claimant was able to pre-record. In any event it is not possible to produce documentaries without being able to pre-record, or indeed the interviews of which Mr. Husaini was critical. As proof of his ability to pre-record and edit the Claimant submitted a CD to the appeal heard by Kevin Silverton. In cross-examination Mr Silverton was asked whether this proved the Claimant could record and edit. He said he would be surprised if the Claimant couldn’t.
The Tribunal also found at 7.95 that Ms Butt noted, ‘there had been an improvement in fixing allocated guests in advance when guests were suggested to him (the claimant), but he contributed very few ideas himself.’ This conflicts clearly with the comments made by Ms Sharma above. More pertinently in her witness statement at paragraph 61 – justifying why she had dismissed guests suggested by the Claimant – Ms Butt presented an alarming view of how she screened guests, ‘We would not use a person that we had not heard of and we will ask around the team to see if anyone is aware of them to gauge whether we should use them…As we felt 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 the audience would be interested.’ Ms Butt was cross-examined on this and questioned by the panel. It is interesting to note that ‘the team’, aside from the Claimant, were all of North Indian origin.
The Tribunal omits a number of other examples given by Ms Butt in her Outcome Letter of 1 December 2010 dismissing the Claimant. The Claimant believes they are important in assessing the reasonableness of his dismissal.
Ms Butt mentions the Claimant had not satisfied her he could use the VCS system competently although most editing on the program was done in Radioman. The Claimant deliberately edited material in VCS which was submitted to Mr Silverton as mentioned above. Ms Butt was also aware that the Claimant used the system on a daily basis. This is hardly an issue for a documentary producer with sophisticated editing skills.
The note of dismissal includes this paragraph, ‘Whilst there have been improvements in communication this is not consistent. I highlighted at the meeting areas were I felt as an SBJ you should be clearer and more directive in your communication, lead the team and provide editorial direction with your emails. Specific examples of this during the current improvement note include the World Cup Fixtures and the London Asian Film Festival (sic) emails. Whilst in our meeting you explained that these were points of information I expect as an SBJ that you would highlight content and be pro active in suggesting how this could be relevant to the audience and show.’
In cross-examination it was put to Ms Butt that forwarding Press Releases was something that journalists did every day. She was shown her own email referring the team to a Wikipedia entry which in fact did need contextualisation. It was also put to her that if the Claimant had not forwarded the World Cup Fixtures or the London Film Festival Press Release there would have been no ground for complaint. The Claimant was not obliged to pass these on. Ms Butt was questioned about this by the panel.
The dismissal note also said, ‘You took the de-brief on the 17th September 2010 and provided feedback to the presenter on the show’s interview. In our meeting I highlighted that there is a difference between giving feedback and leading the team in the de-brief, I feel that in leading the meeting itself you lacked authority. Whilst I appreciate as you say that management styles vary, my feedback related to your ability to chair the meeting where you stay in control of the dialogue and move the team on to talk through the prospective features, guests and updates on individual tasks. Again had you led the studio production more regularly there would have been increased opportunities for you to do this.’
It was put to Ms Butt that the Claimant had pointed out at this debrief that the presenter Ms Deol had missed what would have been the most interesting and newsworthy aspect of the interview. She had accomplished this by not listening to what the guest was saying. He had begun talking about carcinogens in the food chain. She asked what made him tick. Neither Ms Butt nor Ms Deol demurred with the criticism at the time. Ms Butt was cross-examined on this point.
The London Film Festival is mentioned for a second time in relation to pro-activity, planning and organising. ‘One area where you could have done this is with the London Asian Film Festival, you sent an email out to the team but did not take a lead in the editorial discussion for how this could be used in the show. I would look to the SBJ to take a lead on this in the team.’ What is not mentioned is throughout this process the Claimant has been assigned the most menial chores, unless Ms Butt needed something like a flood special set-up at short notice. It would have been quite easy for her to respond asking the Claimant to arrange coverage of the festival.
The Claimant’s failure to attend a course is also noted. ‘You have also identified the Chairing and Facilitation course as required training, you have not been able to attend this course since the time it was identified.’ The Claimant identified this course and was asked to make enquiries. The co-ordinator, Johanna Heinecke, sent back a note saying she had booked the Claimant on the course. Minutes after receiving this confirmation email the Claimant responded explaining he had only been making enquiries and any booking would have to be cleared first. Ms Butt sought an explanation. The Claimant wrote to Ms Heinecke. Ms Heinecke wrote to Ms Butt explaining it was an accident. The matter was raised at the third capability meeting on 21 September.
The notes show, ‘NB said that in their 7th September meeting DM gave a very confusing account of being placed on the Chairing and Facilitation course which had not been signed off by NB.’
The issue was raised although Ms Heneicke had sent her explanation on 8 September and Ms Butt had emailed the Claimant acknowledging it was Ms Heinecke’s mistake on 16th September.
On 16 September the Claimant also emailed Ms Butt details of spaces on this course which would be run on 3 November.
The lengthy email chain recording this completely unnecessary expedition was read by the Tribunal and Ms Butt cross-examined on the issue. It was also included in the Appeal Heads submitted to Mr Steele as an example of unfairness. Ms Butt was cross examined on how she could expect the Claimant to have attended a course only available after he was dismissed. She said the Claimant could have gone on the 16th.
Ms Butt was cross-examined at length on the nature of these claims. It is a ground of this appeal that the omission of this evidence highlighting the ridiculous nature of the Respondent’s performance allegations – and justifying the dismissal of the Claimant – is both biased and perverse.
The Claimant began this appeal by suggesting that the peculiarity of this case was the wholesale acceptance of the Respondent’s evidence and the complete rejection of that of the Claimant. This bias was justified by the Tribunal on the grounds of the Claimant’s allegedly poor credibility and accentuated by its decision to substitute its own view for the Respondent’s note-taking protocol. The result has been systematic and pervasive bias which has been exacerbated by a willingness to overlook the gross inconsistency and glaring contradictions in the evidence given by the Respondent witnesses. The large amount of detail already provided, much of it tedious, still does not tell the full story. It is possible to go on and on, encountering regularly along the way the punishing ad hominem. Here is a final example to allay any suspicion of exaggeration.
‘27. Complaint 3: Dealt with at 7.20 the alleged remark that the claimant was radical because he read the Independent newspaper’
This complaint as particularised by Employment Judge Hughes was: ‘The claimant complains that early in 2007 Mr Husaini (Head of News) made a remark the claimant was a ‘radical’ because he read the Independent newspaper.’
In his witness statement the Claimant said, ‘When I next saw Mr Husaini he said he thought I was a radical. He made no criticism of the Drive program. Instead he said I read the Independent and followed-up stories from that newspaper and that I did not go with the flow like the other journalists on Breakfast.’
The claim was dismissed because Mr Husaini said he did not view the Independent as a radical newspaper. The Tribunal also took into account the inconsistency between the Claimant’s complaint as particularised by Judge Hughes and the ‘version’ in the Claimant’s witness statement.
The Claimant had raised this issue a number of times before as the Tribunal heard. The Tribunal was taken to some of the following pages.
1369 – 10 September 2008: ‘he said he thought I was radical and referred to my reading of the Independent
1389 -15 March 2009: ‘Shortly after I had edited the Drive program for a month or so Husain told me he thought I was a radical. He did not query any stories I had broadcast. To substantiate the charge he somewhat vaguely suggested I went against the flow. More specifically he said I read the Independent ad followed leads from that paper.’
144- 31 August 2009: I was also accused of being a radical for reading the Independent.
707 -22 October 2009: In submissions I have recorded that he has also accused me of being a radical for reading the Independent.
755 – 19 January 2010- I was accused of being a radical for reading the Independent.
757 – He has quite alarmingly accused me of being a radical.
878- 18 May 2010: I was accused of being a radical for reading the Independent.
1098- 1 October 2010: I have also been accused of being a radical for reading the Independent a national newspaper.
789 – 1 March 2010: I was accused of being a radical for reading the independent.
It is not what Mr Husaini thought about the Independent that matters, but what he thought about the Claimant. And there is little inconsistency between the statements. For the record this is an additional ground of appeal, the finding reflecting both perversity and in the especial case of Mr. Husaini, bias.
The issue clearly is not the exercise of judicial discretion contrary to the weight of evidence but findings which fly in the face of fact and reason. The fully particularised grounds expose nothing less than an overwhelming case of perversity.
15th May 2012
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