Judgment 29 -3- 2011

Case Number 1313142/2010
DJT
EMPLOYMENT TRIBUNALS
BETWEEN
Claimant                                       And                Respondent
Mr D Maistry                                                        The BBC

JUDGMENT OF THE EMPLOYMENT TRIBUNAL ON A PRE-HEARING REVIEW

HELD AT Birmingham ON 14 February 2011
EMPLOYMENT JUDGE Hughes
Representation
For the Claimant: In person
For the Respondent: Mr T Sadiq, Counsel

RESERVED JUDGMENT
The judgment of the Tribunal is that:
1. The claimant holds a philosophical belief as defined by the Employment Equality (Religion or Belief) Regulations 2003 and his complaints under those Regulations can proceed to a full Hearing.
2 The claimant did not carry out a protected act for the purposes of bringing a victimisation complaint under the Employment Equality (Religion or Belief) Regulations 2003 or the Employment Equality (Age) Regulations 2006 and his victimisation complaints are hereby dismissed.
3. The claimant’s application to amend to add complaints that (1) the amendment of his appeal notes on 2 December 2010 and (2) the appeal outcome on 3 December 2010 amounted to further acts of direct discrimination and harassment on the grounds of his philosophical belief or his age is allowed. His application to amend to add further historical complaints of discrimination is rejected.

REASONS
Background and Issues
1. The background and issues are as set out in my Case Management Order of 3 December 2010. In summary, the claimant seeks to complain that he was unfairly dismissed and discriminated against on the grounds of age and/or philosophical belief. During the Case Management Discussion (“CMD”) three preliminary issues were identified. The first concerned whether the claimant held a belief amounting to a philosophical belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003 (“the 2003 Regulations”). In my Case Management Order I summarised the claimant’s philosophical belief as follows: “The claimant told me that it is his belief that public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion”. I should make it clear that that this was a summary of a much lengthier exposition of the claimant’s belief as he explained it during the CMD. During the course of the CMD I spent quite some time clarifying the complaints being made and these are as set out in my Order. The claimant then said that he wanted to bring further complaints in addition to those which he had briefly set out in the Claim Form. I explained that this would require him to make an application to amend. Finally,there was an issue as to whether the claimant had made grievances for the purposes of bringing victimisation complaints under the 2003 Regulations and/or under the Employment Equality (Age) Regulations 2006. As was noted in the Case Management Order, the claimant accepted that he had made no reference to his age in the letters he
relied upon for the purposes of his victimisation complaints which were grievances of 8June 2008 and 11 May 2009. Consequently, the issue was whether there was a victimisation complaint for the purposes of the 2003 Regulations.

2. Following the Case Management Discussion the claimant applied to amend his claims to include a number of historical complaints of discrimination dating back to late 2004. He also applied to amend to add complaints which post-dated the presentation of his Claim Form on 9 October 2010. In particular, in Section 7 of the amendment application which was received on 16 December 2010 and in total ran to 15 pages, the claimant made allegations of direct discrimination, bullying and victimisation in respect of the way his appeal against dismissal was conducted and about the outcome of that appeal. As can be seen from the date of the application, it was made within three months of the original claim being presented. Therefore the proposed amendments relating to the appeal were made within the primary time limit, which was not the case for the historical complaints.

3. The issues to be determined at the Pre-Hearing Review were as follows:
3.1 Whether the claimant had a philosophical belief such as to entitle him to
the protection of the 2003 Regulations.
3.2 Whether the grievance letter of 8 June 2008 and/or the complaint letter of
11 May 2009 amounted to protected acts for the purposes of the victimisation
complaint under the 2003 Regulations (it being common ground that no mention of age was made in those documents).
3.3 To determine the claimant’s application to amend his claims.

4. I heard oral evidence from the claimant about the nature of his belief and he was cross examined about that issue. He had produced a written statement about his belief with appendices running to some 84 pages. The appendices mainly consisted of extracts from lengthy documents that the claimant had given to the respondent in connection with grievance hearings and appeals and, for the most part, were relevant to the substantive claims being made, rather than the question of whether the claimant held a philosophical belief. The claimant had also produced a written skeleton argument. The respondent’s representative submitted a written skeleton argument and copies of the following cases:
Grainger Pic -v- Nicholson [2010] IRLR 4; McClintock -v- Department ofConstitutional Affairs [2008] IRLR 29; Campbell and Cosans -v- UK 4 EHRR 293
ECHR; a first instance tribunal decision in the case of Kelly & Others -v- Unison (which I understand to be on appeal); and an extract from Hansard concerning a debate about the Equality Bill (which is now the Equality Act 2010. Both parties made oral submissions on the three preliminary issues to be determined.

Does the claimant hold a philosophical belief for the purposes of the 2003 Regulations?

5. I will first deal with the question of philosophical belief, since that is central to the scope of the matters which the tribunal will have to determine in this case. In the claimant’s statement he made reference to the statements by Lord Reith and by Mr Mark Thompson, Director General of the BBC concerning the purpose of public service broadcasting. The claimant relied on the fact that Lord Reith had stated that the purpose of public service broadcasting is to foster a reasoning citizenry and to support the development of an inclusive, participatory and enlightened democracy. He also relied upon a statement by Mr Thompson that public service broadcasting is founded on the idea of “public space” – a place which is neither part of government nor the state nor purely governed by commercial transactions, which everyone is free to enter and within which they can encounter culture, education and debate, and where they can share and swap experiences. He also referred to a statement by Dennis Potter concerning the connection between public service broadcasting and the belief in the possibility of a common culture. In his witness statement, the claimant said that this view of public space and the possibility of enhanced citizenship has been given cogency, seriousness, cohesion and importance by philosophers such as Jurgen Habermas and John Dewey. I was not asked to read works by those philosophers, but nor was it challenged that they had written about the concept of public space and the possibility of enhanced citizenship.

6. As regards the strength of his belief, the claimant pointed to his own record. He was originally a student leader, trade unionist and journalist in South Africa at the time of the anti-apartheid struggle and was banned from studying at University in South Africa for his role, alongside Steve Biko, in the black student boycotts of 1972. The claimant was also a founder member of the Media Workers Association of South Africa and has represented South African journalists internationally. He told me he was forced to flee South Africa for a second time in 1987 after his reports for international news outlets led to security police raids on the Press Trust of South Africa News Agency. The claimant explained that the lessons of apartheid had reinforced his belief that committed and concerned journalism is an essential component of democracy; and that the public service broadcasting provides a very effective space for enhancing citizenship. He explained to me that in the context of apartheid, the central question which had to be addressed was that one group of citizens had been brought up to consider themselves “superior” and another group of citizens had been brought up to consider themselves “inferior”. The claimant said that this was an example of where the public space afforded by public service broadcasting, could have provided a medium in which that debate could be had.

7. The claimant also referred to the fact that the BBC is publicly funded by the licence fee and has a mission to inform, educate and entertain. In order to fulfil that mission the BBC is subject to a Royal Charter and Agreement which set out six public purposes. These include: sustaining citizenship and civil society, promoting education and learning and stimulating creativity and cultural excellence. In that context he quoted from Professor Georgina Born (Professor of Music and Anthropology at Oxford University) concerning the function of broadcasting in our lives. In particular she said: “A public service broadcaster like the BBC has an overriding duty to respond to the redrawing of Britain’s constitutional and social contours and developments in the world, and to allow them to inform an enriched cultural, political and moral stance… Public service broadcasting in this context has a singular importance. For in the face of international conflicts and domestic tensions, it offers precisely that independent arena for staging a ‘politics of complex cultural dialogue’ that is required in order to cultivate
commonality, reciprocity and toleration”.

8. The above summarises the claimant’s evidence as to his belief and why he
considers that it constitutes a philosophical belief for the purposes of the 2003 Regulations. I accepted that the claimant had a genuine and strongly held belief in what I will describe in short as the higher purpose of public service broadcasting. It is clearly of great personal significance to him, given his journalistic career, shaped as it has been by events in South Africa, and by a clear desire to ensure that journalism via the medium of public service broadcasting, provides an opportunity for important issues such as the question of apartheid, to be debated. I had no reason whatsoever to doubt the strength of the claimant’s feelings about this.

Summary of submissions on the issue of belief

9. The respondent’s representative referred in particular to paragraph 4 of Nicholson in which Burton J summarised limitations on the meaning of philosophical belief and noted that paragraph 26 requires that the belief should have a similar status or cogency to a religious belief. The respondent’s representative said that that the claimant’s statement of philosophical belief as set out in my Case Management Order was vague, as was the fuller explanation given in evidence. It was the respondent’s case that the legislation could not have been intended to cover a belief of this nature because really it was 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 organisations, if genuinely held, could amount to philosophical beliefs. By way of example, the respondent suggested that a belief that the aim of the NHS should first and foremost be to look after the health and welfare of its patients could, if the claimant were correct, amount to belief for the purposes of the 2003 Regulations, but it would be absurd for that to be the case. In oral submissions, the respondent’s representative went further, and suggested that if the claimant was correct to assert that he held a philosophical belief, this could extend the protection of the 2003 Regulations to employees of private commercial concerns who could seek to argue that they believed in their employer’s mission statement. It was submitted that a statement as to the aspirations of the BBC could not have the cogency of a religious belief such as to amount to a belief protected by the 2003 Regulations.

10. The respondent’s representative also reminded me that in Nicholson it was noted that the question of whether the philosophical belief asserted was genuinely held fell to be tested by cross-examination. Mr Sadiq observed that the claimant had not raised the question of his belief during the capability or grievance proceedings, as could be seen from the documents appended to his witness statement. The respondent’s position was that the most the claimant did during those proceedings was to make vague references to “BBC values” and that this was not adequate. In the circumstances, the respondent could hardly have discriminated against the claimant because his beliefs.

11. The respondent’s representative also submitted that the claimant’s asserted belief was in reality an opinion rather than a belief as such. It was submitted that as such, the asserted belief was akin to a political opinion, and that parliamentary debates suggest that political opinion is not intended to be covered by the 2003 Regulations or the provisions of the Equality Act 2010 which supersedes them. The respondent’s representative said that the question as to whether holding a political philosophy such as socialism, Marxism, communism or free-market capitalism might qualify was not determined in the case of Nicholson, and that in the first instance the case of Kelly -v- Unison, it was held by an employment tribunal that holding Marxist/Trotskyist views did not amount to a philosophical belief since political beliefs were not intended to be covered by the 2003 Regulations.

12. The respondent’s representative confirmed that the respondent did accept that the asserted belief was worthy of respect in a democratic society, but maintained that it did not meet the criteria in Nicholson in other respects. He observed that there are many beliefs that are worthy of respect and not incompatible with human dignity which would not be protected by the 2003 Regulations

13. The claimant’s written submissions were relatively brief but he made lengthy oral submissions. The claimant also referred to paragraph 24 of Nicholson setting out the criteria limiting the definition of philosophical belief and argued that if those criteria were met, there was no other limitation on the nature of what could be a philosophical belief. He pointed out that in paragraph 28, Burton J suggested that there was nothing in the make-up of a philosophical belief- particularly against the background of Article 14 of the ECHR – which would disqualify a belief based on a political philosophy. The claimant disputed that his asserted belief was political in nature, but said that even if it was, the EAT judgment in Nicholson had left open the possibility that a political philosophy could be a philosophical belief for the purposes of the 2003 Regulations.

14. It was the claimant’s case that there was no authority for proposition that if the asserted belief relates to a statement of purpose made by an employer such as the BBC, this would disqualify it from being a philosophical belief for the purposes of the 2003 Regulations. The claimant said that the criteria set out in paragraph 24 should be applied without embellishment and that there were no grounds for limiting the scope of protection in the way suggested by the respondent. The claimant also made submissions about paragraph 27 of Nicholson pointing out that a philosophical belief could be a one-off belief and not shared by others, although his primary argument was that this is not the case in relation to his belief as could be seen from the fact that it has been written about by philosophers and academics and articulated by senior BBC executives. The claimant also pointed out that the EAT had stated that the philosophical belief in question does not need to constitute or allude to a fully fledged system of thought, providing it otherwise satisfies paragraph 24 – it does not have to govern all aspects of a person’s life.

Conclusions as regards philosophical belief

15. The starting point as regards what is encompassed by “belief would usually be the statutory wording. However the 2003 Regulations simply use the word “belief and do not further define it and are therefore of no assistance and one must look to the authorities. The leading case is Nicholson. The criteria set out in Section 24 of the EAT’s judgment in that case are as follows:
1 The belief must be genuinely held.
2 There must be a belief and not, as in McClintock, an opinion or viewpoint
based on the present state of information available.
3 It must be a belief as to a weighty and substantial aspect of human life and
behaviour.
4 It must attain a certain level of cogency, seriousness, cohesion and
importance.
5 It must be worthy of respect in a democratic society, be not incompatible
with human dignity and not conflict with the fundamental rights of others.

16. As noted already, I had no reason to doubt that the claimant’s belief is genuinely held. That can be seen from his account of his journalistic career which was not seriously challenged. Whilst I accepted that the points made by Mr Sadiq about whether (and to what extent) the claimant had raised the question of his belief during the capability or grievance proceedings were clearly of relevance to the question of liability, I did not think they were relevant to the genuineness or otherwise of the claimant’s belief, unless it could be inferred that a failure to mention it (if such there was, and I make no finding on that) demonstrated that it was not a genuine belief at all. I did not accept that such an inference should be drawn.

17. There was no dispute as to the fifth criterion – the respondent accepted that the claimant’s asserted belief was worthy of respect in a democratic society and not incompatible with human dignity. As regards the second criterion, I accepted that the belief described by the claimant was indeed a belief, rather than an opinion or viewpoint based on the present state of information available. I considered that the claimant was right to point to the statements made by the present Director General of the BBC and by Lord Reith as to the purpose of public broadcasting and to the fact that it has attracted commentary by philosophers and academics, as evidence of a shared belief in the importance of an independent public space where, in the words of Professor Born, “a politics of complex cultural dialogue” can take place.

18. As to whether the belief concerns a weighty and substantial aspect of human life and behaviour – my conclusion was that it clearly does. A belief in the importance of providing a non-commercial, non-Governmental, independent public space in which cultural, social and political tensions can be debated and explored and in which tolerance of other viewpoints is fostered, clearly relates to weighty and substantial aspects of human life and behaviour. Indeed the tenor of the quotes relied on by the claimant, was that it was an essential component of a democratic society. I was also influenced in my thinking by the fact that the importance of the BBC World Service has been recognised internationally for many years. 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 characterised 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 that the claimant was right to argue that neither the 2003 Regulations nor Nicholson provide authority for the proposition that the public aims of an organisation cannot amount to a philosophical belief if those aims are the result of an underlying philosophical belief. It is worth noting that the 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 life and behaviour.

19. Finally, and as regards whether the asserted belief has attained a certain level of cogency, seriousness, cohesion and importance, I concluded by reference to the above points that it must be said that it has. I did not accept that the claimant’s asserted belief was a political opinion or based on a political philosophy. However, even if it had been,the appellate courts have not yet definitively determined that question. Indeed, it can be seen from Nicholson, that Burton J could see no reason why a political philosophical belief would not be encompassed. Set against that background, I did not consider the case of Kelly -v- Unison could safely be relied on – it is a first instance decision and sets no precedent and my understanding that it is on appeal. Whilst the submissions made by the respondent’s representative as regards the potential scope of the Regulations were attractively put, I do not think that a first instance decision by me has the potential to open the floodgates such that the employment tribunals will be awash with claims from employees arguing they have been discriminated against for having a strongly held belief in the purpose or mission statement of their public or private sector employer. Any such asserted belief must fall to be tested on a case by case basis, as has happened here. It may well be that the scope of “philosophical belief is wide, but it is worth noting that meeting the Nicholson test merely establishes that there is a protected characteristic, such that a discrimination complaint may be brought – the real battleground is whether there has been less favourable treatment and, if so, whether it was on grounds of the belief relied on.

20. For the above reasons, I concluded that the claimant holds a philosophical belief for the purposes of the 2003 Regulations.

Victimisation

21. The second issue was whether the claimant had carried out a protected act under the 2003 Regulations, for the purposes of bringing a victimisation complaint under those Regulations or, indeed, under the EA10. It was the claimant’s position that I should not merely limit myself to the contents of the two grievance letters he made reference to during the CMD, but that I should also consider the context in which he was working. It was his position that everybody working for the respondent understood that references to “BBC values” were references to a shared belief system. The respondent’s representative disputed that and said that such vague references could not be sufficient to constitute a protected act. I read through the substantial volume of documentation appended to the claimant’s statement to see whether there was any indication that there was a background against which references to “BBC values” would be understood to be a reference to an
underlying belief such that the respondent would have been put on notice by those references to the possibility that the claimant had carried out an act protected by the 2003 Regulations. This point can be dealt with shortly. It was clear from the documents provided that during the capability and grievance processes the claimant did no more than make reference to “BBC values”. Whilst I accepted that this was his way of referring to his underlying philosophical belief in the higher purpose of public service broadcasting, I thought it unlikely that such references would be understood by the respondent to amount to a protected act. Consequently I did not accept that the claimant had carried out a protected act for the purpose of making a victimisation complaint. It therefore follows, that the claimant’s complaints as set out in my Case Management Order can proceed as complaints of direct discrimination and harassment on the grounds of philosophical belief, but cannot proceed as victimisation complaints.

The application to amend

22. The final issue was the claimant’s amendment application. The claimant submitted a Claim Form in which the complaints which he brought were in summary form and were unclear. During the course of the Case Management Discussion I thought it important to properly clarify the complaints being made, in order for the respondent to know the case which it has to meet. I decided to set the complaints out in full in my order to assist both parties. The outcome was that there are currently twenty four complaints of discrimination spanning the period from 2005 to 1 October 2010 (the date on which the claimant was dismissed on notice with the effective date of termination being 1 January 2011) a period of some 6 years. As noted above, the proposed amendments fall into two categories – new historical complaints and complaints which have arisen following the presentation of the original Claim Form and which are in time. I shall deal with the latter first.

22. As regards the complaints which relate to the period after presentation of the Claim Form and in particular to matters said to have taken place on 2 and 3 December 2010, during the PHR I observed that these would fall to be dealt with differently by reason of the fact that they are amendments to add complaints which are in time. The respondent’s representative originally took the view that claims which post-date the presentation of the Claim Form cannot be added by way of amendment, and that the claimant should have presented a further claim and had failed to do so. I suggested that both parties should look at the EAT’s judgment in Prakash -v- Wolverhampton City Council EAT/0140/06 which deals with this specific point. In that case the EAT held that where a claim had been presented prematurely, the Employment Tribunal has the discretion to allow a claim to be added by way of amendment that could not have been included when the claim was originally presented. The EAT also noted that the discretion to allow such an amendment must be exercised in accordance with the well known principles set out in Selkent Bus Co -v- Moore [1996] IRLR 661.

23. The complaints concerning the appeal are clearly in time. Indeed, if the claimant had submitted them on a second Claim Form, they would have been accepted, and there would have been no issue as to whether they could proceed. The other side of that coin is that obviously the claimant could not have included the complaints in his original Claim Form because at the time when he submitted it the events he now seeks to complain of had not yet occurred. Furthermore, and in light of the existing claim, the respondent would have expected further complaints to be brought once the outcome of the appeal was known. The case of Prakash makes it clear that it is open to a claimant to add new complaints by way of amendment rather than a fresh Claim Form, and that is a pragmatic decision. Applying the doctrine in Selkent, I was in no doubt that the balance of hardship lay with the claimant. I concluded that the claimant may bring two further complaints as follows: that the amendment of his appeal notes on 2 December 2010 and the appeal outcome on 3 December 2010 amounted to further acts of direct discrimination and harassment on the grounds of his philosophical belief or his age.

24. I shall finally deal with the application to amend to add further historical
complaints of discrimination which are out of time. It is the claimant’s position that the further historical complaints which he seeks to bring merely clarify or add to the matters already set out in his Claim Form and further clarified at the Case Management Discussion. It is the respondent’s position that the claimant is seeking to add a large number of new complaints and that this is oppressive. The respondent’s representative suggested that the Claim Form in no way flagged up any of these further complaints. Both parties referred to the balance of hardship test.

25. I accepted that the respondent’s representative was right to say that these
complaints are new allegations – indeed the claimant confirmed that at the CMD when he told me that he wanted to add further allegations to those already identified when went through the Claim Form line by line. I accepted that the claimant may well have believed that he could add further allegations as the case progressed, but that is not correct as a matter of law – there is a need for certainty in litigation, and the respondent must know the case against it – it would be unjust to require the respondent to have to meet an ever moving target. Furthermore, the claimant is clearly a man of intelligence, so much so that he had researched the law sufficiently to be able to assert that he had a complaint on the grounds of belief. Indeed, during the CMD, he told me that he was familiar with the case
of Nicholson. In the circumstances, it appeared to me that it would have been open to the claimant to establish that he must include details of all the claims which he wishes to bring on his Claim Form. Those need not be provided in any great detail as the complaints could be further clarified by way of further and better particulars (which is essentially what happened at the Case Management Discussion) or indeed in witness statements. However, the expectation is that the complaints should be contained in some form.

26. I am also mindful of the fact that the claimant is already bringing twenty four allegations of discrimination spanning a period of some six years and that it is his case that the capability proceedings were part of a continuing course of discriminatory conduct. It seems to me that if the claimant does not establish discrimination in respect of any of the allegations already before the tribunal (of which there are now twenty six as a result of allowing the amendments in respect of the appeal), it is fanciful to suppose that the additional matters that he wishes to bring by way of amendment would be decided differently. Similarly, if the claimant does establish discrimination in relation to some of or all of those twenty six matters, it is difficult to see how it would assist the claimant or the tribunal for there to be further findings in respect of the proposed additional allegations. The short point is that the claim is put as a continuing course of discriminatory conduct, and consideration of twenty six allegations provides ample opportunity for the tribunal to determine whether the claimant is right about that or not.

27. I do not consider it to be in the interests of justice to allow any amendments to the Claim Form to cover the period prior to the presentation of the claim. The balance of hardship lies firmly with the respondent. The case this has to meet is a substantial one and will require a considerable number of days of Hearing. I also consider that substantial judicial and tribunal resource will already be required to hear the twenty six discrimination complaints and to determine the unfair dismissal question, such that allowing the remit of the Hearing to expand any further is not in accordance with the overriding objective. Consequently, with the exception of the two amendments in respect of the appeal, the application to amend is rejected.

27. Now that the scope of the allegations made has been clarified by this judgment, there will be a further CMD to make Orders as to the future conduct of the case.
Employment Judge RESERVED JUDGMENT
Judgment sent to Parties on
29 March 2011

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