Sent: Tuesday, July 24, 2012 7:15 AM

Subject: Fw: Conscience Clause

Hi Michelle

I thought it worth sending you an update on a issue that is of concern, although I realise you have other pressing concerns.

Devan Maistry

Philosophical belief (higher purpose of public broadcasting) – Maistry v BBC

A former BBC journalist, Devan Maistry, is being sued by the BBC for costs in excess of £ 200,000 for ‘vexatiously and unreasonably’ claiming he was dismissed because he believed the public broadcaster served a higher purpose. The matter will be heard in Birmingham on 21 August. The TUC annual conference in London has backed the NUJ’s call for a “conscience clause” that would stop journalists being sacked if they refused to do journalism that was unethical and in breach of the Code of Conduct. In dismissing Mr Maistry’s claims, an employment tribunal found that BBC protocol required its news journalists to record all conversations with contacts in a publicly accessible folder; and that NUJ agreements could be interpreted at the whim of management.

Background

1. Mr. Maistry’s claims of unfair dismissal, harassment and discrimination were dismissed by an employment tribunal in April 2012. The BBC claimed he was dismissed for lack of capability. The only investigation of the performance issues was undertaken by senior manager Tarrant Steele who heard the claimant’s appeal against dismissal after 14 years of service. In his witness statement, Mr Steele said he had reviewed the entire capability process. ‘I was surprised that Devan’s performance issues were very basic, and issues that an entry level person should be able to do, such as editing a package.’ It was put to Mr Steele that such a claim was impossible. The BBC had been broadcasting sophisticated documentaries produced and presented by the claimant. He could not have produced these documentaries if he was unable to edit a package or lacked entry-level skills. The claimant was also a former manager.

2. The claimant’s credibility was found to be ‘poor’ and accordingly 97 findings of fact favoured the respondent. The only other finding – that the claimant had worked for the BBC – was not in dispute.

3. Following a Pre Hearing Review last year Employment Judge Hughes concluded that the claimant held a philosophical belief, which qualified for protection under the Regulations. She described the claimant’s belief ‘in short’ as ‘the higher purpose of public broadcasting’. She referred to statements by Lord Reith and Director General Mark Thompson submitted by the claimant under the head ‘Public Service Broadcasting and BBC Values.’ In relation to the claimant’s use of the phrase ‘BBC values’ she said, ‘I accepted this was his way of referring to his underlying philosophical belief in the higher purpose of public service broadcasting…’ She rejected the respondent’s argument that the aims and values of the BBC amounted to a mission statement. ‘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.’

4. During the full hearing, earlier this year, a senior BBC manager Tarrant Steele was questioned about the BBC’s editorial values. He said he was not a journalist and his knowledge of ‘BBC values’ was limited to those listed on the back of his BBC pass. Kevin Silverton, the Asian Network’s Head of News – who gave evidence subsequently – confirmed the importance of the BBC’s public purposes and its Producers Guidelines which set out the BBC’s ethical and editorial code. He said ‘BBC values’ were not optional and any employee would be encouraged to become a paragon of ‘BBC values’. He said he shared the Director General’s belief that the BBC had a higher purpose.

5.  The Tribunal found, ‘The evidence (Mr. Steele’s pass) 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.’

6.  The ‘Inside the BBC’ website offers the following: ‘Our mission, vision, and values inform the work of the BBC and are how we promote our public purposes’ and ‘The BBC’s six public purposes are set out by the Royal Charter and Agreement, the constitutional basis for the BBC as presented to Parliament. These purposes outline the values the BBC holds when striving to achieve its mission to inform, educate and entertain.’

7.  The respondent witnesses said in their statements they could not have discriminated, as they were not aware of the claimant’s philosophical belief until Judge Pauline Hughes gave her decision. The claimant questioned all the witnesses about their belief in ‘BBC Values’ and contradictions with editorial policy.

8.  The tribunal held that an adverse inference should be drawn because the claimant had not questioned the respondent witnesses about the higher purpose of public broadcasting but only about ‘BBC values’.

9.  Although the claimant made detailed written submissions about ‘BBC Values’ the tribunal held that he had nowhere attempted to explain these values.

10.  The tribunal also drew an adverse inference because it said the claimant had not made any complaint of discrimination during the five years he claimed to have been subjected to discrimination. However, the tribunal was shown the following complaint made in writing in June 2010.

‘These shortcomings are compounded by bias. Time and again, serious errors by my colleagues are overlooked, even dealt with constructively or proportionately. In my case, management raises the wildest and most absurd charges in an effort to achieve dismissal. This issue of discrimination is spectacularly highlighted by the manner in which I was blamed on March 2 and the producers simply forgiven. Sonia is allowed to bully me openly but my editorial competence is attacked for suggesting that presenters have a different role to editors and producers. 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.’ There is no explanation for why this complaint is ignored as irrelevant.

11.  The Leveson Inquiry has not touched on the most formidable influence on journalistic ethics – fear brokered under a democratic veneer. An NUJ solicitor’s initial advice was that facts do not matter to tribunal judges. It is easy to demonstrate that every one of the tribunals 97 findings should be treated with circumspection. A significant witness is allowed to change his statement after reading the claimant’s supplementary statement. Witnesses are protected from cross-examination on documented evidence showing they are deliberately misleading the tribunal. Documents are fabricated with no questions asked. Judicial instruction is perverted without a blink. An appeal on the grounds of perversity and bias is rejected because perversity is not a high hurdle but a judicial fiction worth exploring more carefully.