If there’s a fringe benefit to litigation it is the opportunity to appreciate the refined elegance of the trained legal mind. It makes it easier to accept, if necessary, that you were wrong in law and flawed in argument. – careless and wasteful of the court’s time too. But it is equally a breach of trust, and the arbitrary exercise of power, to dispense justice laced with fallacy.
Let me illustrate the point. The critical finding of fact in Maistry v BBC (2012) was that the BBC Values are a mission statement. They are not a serious ‘philosophical belief’ attracting protection in law as established by a Tribunal a year earlier This finding is set out at paragraph 7.8 of the judgment of Employment Judge Hilary Harding.
“Like many corporate organizations the BBC has a set of values, or a mission statement, which it publishes, and expects its employees to follow. These values are as follows. Trust- the BBC is independent, impartial and honest. Audiences –are at the heart of what the BBC does. Quality- the BBC takes pride in delivering quality and value for money. Creativity – is the lifeblood of the BBC. Respect – each other and celebrate diversity so everyone can give their best and working together – one BBC where great things happen.”
At paragraph 21 the Tribunal concludes:
“That these were the BBC values was not challenged by the claimant and it seems to us therefore that the BBC Values are distinct from the belief which the claimant holds in the higher purpose of public service broadcasting , which has been found to be a protected belief.”
The phrase in italics simply means not a philosophical belief.
This is the argument.
1. The BBC Values are a mission statement.
2. The claimant agreed the BBC Values are the BBC Values.
3. Therefore the BBC Values are a mission statement.
The Tribunal says its finding that the BBC Values are a mission statement is based on evidence from the BBC. It cites no evidence and gives no reason for the finding. The only ‘evidence’ to which the BBC referred was the BBC Values. The BBC’s representative simply said: “The Claimant went through the ‘BBC’s values’, which effectively amounts to a mission statement”. The conclusion in paragraph 21 is simply a form of circular reasoning based on the acceptance of this unsupported submission as fact. But this was enough to decide a case.
It’s worth noting that the Values cited by the Tribunal are not the BBC Values and so could not have been put to the claimant.
Two more examples of spectacular irrationality are provided in the Tribunal’s reasons for refusing to admit as new evidence statements made and endorsed by the BBC Management Board. These statements are contained in the BBC’s ‘Respect at Work Review’ published in May 2013. The focus of the Review was bullying and harassment at the BBC. The Review said the BBC Values are a distillation of the BBC’s mission and vision, that managers and staff at the BBC strongly believed in the Values and that the BBC must ‘live and breathe’ its Values.
This contradicted the claim of ten BBC managers that they could not have known I believed the BBC served a higher purpose. It also undermined the Tribunal’s central finding that the BBC Values are a mission statement. In my application for a review of the judgment I said I relied on statements made in the first 13 pages of the report.
The test for the admissibility of new evidence is that (1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence would probably have had an important influence on the result of the case; and (3) the evidence must be apparently credible. In my application I said the new evidence met this test.
Judge Hilary Harding rejected this new evidence from the BBC and its Management Board:
“3. The claimant set out his contended grounds for review in detail in his letter. He seeks to rely on a 61 page report published by the respondent in May 2013. He submits that this report amounts to new evidence relevant to the issues in his case.
4. I refuse the application for a review. I accept that the existence of this report which could not have been reasonably known of or foreseen at the time of the Hearing but I do not find it is in the interests of justice for a review to be conducted in circumstances where new evidence is produced over one year after the judgment in the case was promulgated.
5. In any event the report adduced as new evidence has no obvious relevance to the claimant’s tribunal case. We are told on page 6 that the scope of the report is to consider the extent to which the ‘the BBC Value of Respect is upheld at the BBC’.”
There is no time limit for the admission of new evidence. In the absence of any explanation the interests of justice must remain a mystery. The reasoning for why the evidence was considered irrelevant is however disquieting.
Here are the bones of the argument.
1. The claimant sought to rely on a 61 page report.
2. At page 6 the report says: its scope is about the extent to which the Value of Respect is upheld at the BBC.
3. Therefore the Report has no relevance to the BBC Values.
This is a straw man argument. I clearly say that I rely on statements in the first 13 pages of the report and identify those statements individually. It is also an example of cherry-picking. Directly above the passage in page 6 to which Judge Harding refers is paragraph 4 of the Review’s terms of reference. It reads:
“to explore what it is like to work at the BBC, more broadly with regard to respect and appropriate behaviour (in line with the BBC Values) particularly for staff or freelancers working with individuals in positions of power”.
The Review is essentially about a renaissance of the BBC Values as a response to sexual harassment, bullying and the abuse of power at the BBC – much of the terrain covered in the trial heard by Judge Harding.
For Judge Harding the Review, and therefore the evidence of the BBC Management Board, has no relevance to her finding that the BBC Values are a mission statement.
“In fact if anything it could be said that it supports the respondent’s case, because it confirms that one of the BBC Values is Respect, as was described by the respondent’s witnesses, and as was found as a fact to be the case.
This time the argument goes.
1. The witnesses say the BBC Values are a mission statement.
2. They described Respect as one of the BBC Values.
3. The ‘Respect at Work Review’ proves Respect is one of the BBC Values.
4. Therefore the BBC Values are a mission statement.
This is simply perverse – the more so as no witness used the term mission statement at the trial or in a witness statement. Even worse these examples of unsound reasoning are part of a larger, disturbing pattern of obfuscation. The Employment Appeal Tribunal dismissed any possibility of bias but I suspect this is not the judiciary’s finest hour.