Application 3-7-2013

Birmingham Employment Tribunal
Case Number : 131314/2010

Devan Maistry      v              BBC
Claimant                                Respondent

Application for review based on new evidence

1. The claimant applies for a review of the judgment given on 3 April 2012 on the basis of new evidence, to wit, a report published by the BBC on 2 May 2013 titled “Respect at Work Review”. The “Review” originally focused on the specific question of sexual harassment at the BBC but was expanded to include broader issues of bullying and the inappropriate use of power. The report acknowledges there is evidence of bullying at the BBC and that staff are fearful of complaining. The claimant relies on passages contained in the first 13 pages of the report.

2. The claimant believes this document meets the test for admissibility set out in Ladd v Marshall [1954] 3 All ER 745 CA and applied in Adebuji v Meteor Parking Ltd EAT/1570/09.

3. This evidence only became available after the matter was heard by the Tribunal and costs awarded. The report followed an investigation into the abuse of power at the BBC in the wake of the Jimmy Savile scandal. The “Review” was overseen by Dinah Rose QC. It is endorsed by the members of the BBC Management Board.

4. The new evidence relates to the claimant’s philosophical belief in the aims and values of the BBC. This was described “in short” by Employment Judge Hughes as “a belief in the higher purpose of public service broadcasting.” The issue of belief was decisive in determining the outcome of the hearing.

5. At the PHR Judge Hughes noted: “It was the respondent’s case that the legislation could not have been intended to cover a belief of this nature because it was really no more than a ‘mission statement’ i.e. a goal to aspire to rather than a belief. The respondent’s representative argued that if the claimant was right, then it would follow that beliefs in the aims and values of a whole host of public organizations, if genuinely held, could amount to philosophical belief.”

6. Judge Hughes rejected the argument: “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. I accepted the claimant was right to argue that neither the 2003 regulations nor Nicholson provide authority for the proposition that the public aims of an organization cannot amount to a philosophical belief if those aims are the result of an underlying philosophical belief. It is worth noting those aims include “sustaining citizenship and civil society, promoting education and learning and stimulating creativity and cultural excellence. Those are weighty and substantial aspects of human behaviour.”

She said: “ I accepted the claimant had a genuine and strongly held belief in what I will describe in short as the higher purpose of public service broadcasting.” She noted it was the claimant’s position “that everybody working for the respondent understood that references to ‘BBC Values’ were references to a shared belief system” and “accepted that this was his way of referring to his underlying philosophical belief in the higher purpose of public service broadcasting…”

7. At the substantial hearing the respondent witnesses claimed that although they subscribed to the BBC Values they could not have known of the claimant’s belief. The respondent’s representative asserted the BBC Values “effectively amounted to a mission statement….These BBC Values are highly commendable; and most BBC employees would be proud to subscribe to these values.”

8. The Tribunal found: ‘The evidence before us from the respondent was that the BBC values are a mission statement incorporating the following behavioural 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.”

9. In its forward to the “Respect at Work Review” the BBC Management Board says:

“People expect more from the BBC. Our audiences and licence fee payers expect high standards of creativity, impartiality and distinctiveness. They expect us to behave with the utmost integrity and decency. They expect us to live up to our stated Values. They are right to do so. The people who help to make the BBC what it is – our staff, our freelancers, our managers, our leaders, our contributors, our suppliers and our partners – expect more of us too. They have the right to expect the BBC to be an organisation which behaves with the highest ethics and standards, where their talents, hard work and loyalty are matched by an experience or relationship with the BBC which is truly rewarding, fulfilling, positive and respectful. The BBC must be an organisation which lives and breathes its Values.”(p 3)

The “Respect at Work Review” says:

“The BBC Values are widely disseminated and published on our internal and external websites. They are printed on the back of most BBC identity cards. They represent a distillation of the essential mission and vision of the BBC and should be at the heart of everything the BBC does, and the way in which it conducts itself.”(p 5)

“The BBC is an organization which inspires a strong affiliation from the majority of people working with it. The BBC mission is often a personally shared endeavour and it is a cause for real pride to be part of it. Our staff and managers believe strongly in the BBC Values and are committed to trying to make the BBC a good place to work.” (p 10)

The report confirms that managers and staff share a common belief in the BBC Values which represent the Corporation’s mission and vision – its higher purpose. This contradicts the assertion of the respondent witnesses that they could not have known of the claimant’s belief.

10. The report says that a re-launch of the BBC Values is to be a key strategy as it approaches its centenary year (p 11). The Values will feature more explicitly in team discussions; compliance with the Values will be a consideration in promotions and appraisals and there will be reference to the Values in job advertisements and role specifications (p 12). Training and development for managers will be re-visited to make sure the Values and tackling bullying and harassment are sufficiently prominent. Managers will be provided with mentors. There will be quarterly Values Surveys. Those managing 10 or more people will carry out a 360o survey based upon the Values. Long lasting improvements will require a relentless focus on the Values of the BBC by all staff. The BBC has not placed enough emphasis on its Values in recent years and that must change (p 13).

From the above it is clear that the BBC does not regard its values as a mere “mission statement” as argued by the respondent’s representative. The BBC insists on observance of these Values which inform its work and the promotion of its public purposes. It intends to ensure that managers comply with the Values in practice.

11. The BBC has put the “Review” into the public domain because it believes the issue of inappropriate behaviour (bullying and harassment) is not just an issue for the BBC but is an industry wide problem. The Management Board therefore welcomes “the opportunity to share our findings and approach in more detail with the media industry”(p 4). However as seen the portrayal of the BBC Values in the “Review” is quite different from the account given to the Tribunal. Moreover on the basis of the latter version – in which the Values are disconnected from the BBC’s vision and mission – the respondent was able to convince the Tribunal that the claimant’s case was misconceived and he had acted unreasonably in pursuing the matter. The respondent’s representative and the respondent’s witnesses have either consciously or through ignorance misrepresented the BBC’s Values before the Tribunal. The implications are obvious and serious and the claimant asks that the Tribunal review its judgment in the light of this new evidence.

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