Birmingham Employment Tribunal
Case No: 1313142/2010
Between D Maistry Claimant
and British Broadcasting Corporation Respondent
Written Submissions of the Claimant
It is useful to begin with Counsel’s inference that the Claimant’s failure to raise complaints of discrimination, under the relevant regulations and instantly, reveals a lack of conviction.
In a statement submitted to the Capability Meeting on 27th May 2009 (p.1323) the Claimant argued that concerns about his performance, if raised at the appraisal in July, could only relate to a six week period on the Breakfast program when he was assigned to planning. He said he had sent off a final appraisal on 12th November. He said the claim that there had been an ongoing series of informal feedback meetings was not supported by documentation despite its importance, and that this should be viewed against the failure to hold two planned meetings about the January 14th email.
The Claimant believed these points were sufficient to raise serious concerns about whether it was proper or appropriate to compel a formal capability meeting. In the opening paragraph however he said: ‘I think there is clearly a history of trying to marginalise my experience and authority and to erode my confidence’.
Despite this argument an informal four week improvement plan was implemented.
In his grievance letter of 8th June 2008 (p.396) the Claimant says his response to the 14th January email should be noted and judged honestly and in context. ‘This may be time consuming but I think it would provide valuable lessons and help reaffirm our commitment to BBC values – which I suspect may well be the major issue here.’
After the ordeal of the improvement plan the Claimant includes in his submissions to Andrew Thorman on 10th September 2008 (p.136) a detailed history of ill treatment and marginalisation. He complains the improvement plan was imposed in breach of the (NUJ) agreement and questions the nature of the performance issues raised. He concludes: ‘I have always been proud of my loyalty to the programs on which I have worked. If, as I suspect, there is an ongoing effort to marginalize and victimize journalists, and especially within a department in which we are trying to nurture ethnic talent, our concern must immediately include the impact this will have on the Network. Journalists who are afraid to think independently are unlikely to foster the high standards of objective reporting on which the reputation of the BBC has been built. There is also the grave risk of evolving a second class culture in which such conduct becomes acceptable.’
When this grievance is dismissed, without the issue of malice or performance even considered, the Claimant appealed on 26th October 2008. With regard to ‘Malice and unfairness’ the claimant said: ‘There is therefore the undeniable influence of senior management. Clearly the facts suggest this is an issue which demands the most serious consideration not just at an individual level but equally as a concern about the values we project in the workplace.’
He claimed that the allegations of poor performance lacked force: ‘I have also made it clear these concerns about malice are heightened by the fact that the most damaging concerns about journalistic performance lack force. If we rule out malice then these claims are brought out of ignorance and inexperience and we face a serious managerial problem.’ Again the Claimant raised the issue of the 14th January email saying, ‘Clearly the sending of an email whose contents are not discussed is insufficient to satisfy either the spirit or the letter of the agreed statement’.
Laura Ellis dismissed this appeal, and as is now apparent, without even reading the submissions made to the grievance hearing.
On 31st August 2009 (p.622) the Claimant lodged a grievance of Bullying and Harassment with BBC HR Direct. He said, ‘Throughout this painful and debilitating ordeal I have appealed to management to act in the best interests of the BBC. I said straight dealing and being up-front are core BBC values and that a culture which disdains such standards should not be allowed to develop within the Asian Network which aims to encourage and promote ethnic journalism. I have pointed out in submissions that there is an established practice at the BBC for improving and achieving performance. Raising capability issues (where on the facts none seriously exist) in a convoluted, tedious, costly and time-consuming strategy spanning three years is I suspect a vindictive abuse of power and position. I believe I am being bullied and harassed as described in our Bullying and Harassment document…’
When a second capability process began with the imposition of a six week informal work plan in September 2009 the Claimant lodged a grievance (p.1415). Identifying less favourable treatment he said, ‘Moreover these capability issues are raised against a disconcerting background of harassment, bullying and marginalisation and appear to be chosen over more direct and established strategies for training staff and enhancing performance.’
He concluded: ‘I believe such reckless managerial conduct damages the reputation of the BBC, undermines its efforts to promote citizenship and civil society and discourages critical journalism at the Asian Network.’
When a formal four week improvement plan was issued in January 2010 the Claimant again appealed (p.754). He said,‘ Capability proceedings have been brought maliciously as part of a campaign of bullying and victimisation…There are no performance issues to justify capability proceedings…The capability process as conducted is a charade and in flagrant breach of the agreement with the NUJ.’
A final warning followed and the Claimant appealed again. He said (p.921), ‘It is a ground of this appeal that I am being discriminated against and that these improvement plans simply provide opportunities for institutionalised 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 demoralising 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 dehumanising and amounts to harassment.’
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.
Consequently, when he appealed against his dismissal the Claimant said: ‘I have restricted the ground of this appeal therefore to the charge that senior management has failed to defend the Corporation’s espoused values and particularly at an ‘ethnic’ network; and that I have been dismissed for maintaining such trust. I believe this is a matter of public interest and that the Director General be copied.’
At this hearing a BBC pass inscribed with the Corporation’s values was shown to the tribunal. It is carried by some 21 000 members of staff. The BBC also codifies its editorial values and standards in its celebrated Producers’ Guidelines. In order to fulfil its mission to inform, educate and entertain, the Royal Charter and Agreement sets out six public purposes. The first of these is sustaining citizenship and civil society. The witness Kevin Silverton said that BBC values are not optional. A tribunal judge has ruled a belief in the higher purpose of the public broadcaster, a belief articulated publically by the present Director General Mark Thompson, is a philosophical belief as defined by the Employment Equality (Religion or Belief) Regulations 2003.
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 honour unconditionally its commitment to these values and the Corporation’s public purpose. It needed to resolve its dilemma creatively rather than victimise, discriminate against and harass its critics.