Birmingham Employment Tribunal
Case No: 1313142/2010
Between D Maistry ( Claimant) and British Broadcasting Corporation ( Respondent)
- The Claimant was dismissed for lack of capability on 1 October 2010 after 14 years at the BBC. The Respondent said it was not appropriate to redeploy the Claimant elsewhere at the BBC as he had failed to ‘demonstrate the level of skill and behavioural engagement that would be required across the board for BBC employees.’
- The Claimant’s appeal against the Respondent’s decision to dismiss was rejected on 3rd December 2010. In his Witness Statement, Mr Tarrant Steele who heard the appeal said he was surprised ‘that Devan’s performance issues were very basic, and issues that an entry level person should have been able to do, such as editing a package.’
- The Claimant submits that he was;
i. Unfairly dismissed in contravention of s.94 (1) ERA 1996.
ii. Discriminated against on the grounds of philosophic belief under s.3 The Equality Act 2010
iii. Discriminated against on the grounds of age under s.3 The Employment Regulations 2003 and s.6 The Employment Equality (Age) Regulations 2006/ or s.26 Equality Act 2010 in relation to the protected characteristics of age and religion or belief, and
iv. Harassed under s.5 The Employment Equality (Religion or Belief) Regulations 2003/ and s.6 The Employment Equality (Age ) Regulations 2006/ or s.26 Equality Act 2010 in relation to the protected characteristics of age and religion or belief
2. Unfair Dismissal
Establishing a Potentially Fair Reason for Dismissal
- s.98 (1) ERA 1996 requires the Respondent to establish the reason or principal reason for dismissal.
- The Respondent alleges a potentially fair reason relating to capability in accordance with s. 98(2) (a) ERA 1996.
- It is for the employer to prove that the potentially fair reason is the real reason for the dismissal. Associated Society of Locomotive Engineers and Firemen (ASLEF) v Mr S Brady  WL 1546668.
- The test is whether the employer honestly and reasonably held the belief that the employee was not competent and whether there was a reasonable ground for that belief. Alidair Ltd. v Taylor  I.C.R 445
- The Claimant submits that capability was not the real reason as claimed but a pretext for securing dismissal. Remarkably high praise for the quality of the Claimant’s work, the belated invocation of the capability agreement, the tortuous nature of the subsequent process, farcical and insubstantial allegations of performance failure, harassment and a strategy of ‘constructive dismissal’, are just some of the facts that compel consideration of an ulterior motive.
- The Respondent must fulfill the requirements of s.98 (1) ERA 1996 before it can argue the reasonableness of its decision to dismiss for capability under s.98 (4) ERA 1996. Miguel Angel Meizoso-Gonzalez v South East Essex Mental Health & Community Care NHS Trust  EWCA Civ 521 at para 23.
- It has been accepted that where the employer fails to show what was the principal or only reason for dismissal, the Tribunal must find the dismissal unfair. Timex Corporation v Thomson  IRLR 522, Green v Southampton Corporation  ICR 153, Earl v Slater and Wheeler (Airlyne) Ltd  1 All ER 145 and Alec Maund v Penwith District Council  WL 282827.
- The Claimant’s contention is that he was dismissed because of his philosophic belief and/or age and not for capability.
- The Claimant is not required to prove, ‘on a balance of probabilities, that his contending reason is the principal reason’, but, ‘on the balance of probabilities, that the issue exists.’ Alec Maund v Penwith District Council  WL 282827.
- The Claimant believes he has satisfied this requirement and the Respondent has failed to discharge its consequent onus of proving the reason for dismissal. Alec Maund v Penwith District Council  WL 282827 and Associated Society of Locomotive Engineers and Firemen (ASLEF) v Mr S Brady  WL 1546668.
- It is further submitted that although the Claimant was dismissed for capability the test to be met in this instance is that given in British Home Stores Ltd. V Burchell  IRLR 379.
- Authority for this approach is found in Ian Keith Perkin v St Georges Healthcare NHS Trust  EWCA Civ 1174. More recently in D B Schenker Rail (UK) Ltd v Doolan  WL 2039815, the Burchell test was held to apply to a dismissal for capability where sufficiency of reason is in issue.
- The Claimant believes that the evidence undermines acceptance of the Respondent’s averred reason and shows that it is unlikely to meet the Burchell test.
Honest and Genuine Belief
i.The Respondent regarded the Claimant’s work extremely highly but this perception changed dramatically during the transformation process. The Respondent’s explanation for this sea-change conflicts with the facts.
ii. For a period of some three years the Respondent sought to encourage the Claimant to leave while discouraging him from staying. The evidence shows that the capability proceedings that were subsequently brought were intended to effectively re-interview the Claimant rather than enhance his performance. Improvement plans were introduced in breach of the agreements to achieve this end.
iii.The capability process involved deception and harassment. The Respondent reacted vindictively when the Claimant challenged the procedure by setting him the further task of demonstrating a co-operative approach to the capability process.
iv. The Respondent implausibly concluded the Claimant did not have entry level skills, such as editing a package, although the Claimant’s documentaries, broadcast by the Respondent, were still available on its website.
v. The Claimant submitted written responses to rebut and refute the performance allegations. The Respondent refused to consider or ignored the Claimant’s answers to these charges. Following Smith v City of Glasgow District Council  IRLR 326, it is submitted that as a matter of law, a reason cannot be treated as sufficient reason for dismissal when it has not been established as true or established on reasonable grounds.
vi. To put the issue of capability into perspective, the Claimant drew attention to numerous, more serious and proven, failures by fellow SBJs and colleagues which were simply overlooked and certainly did not lead to dismissal. These range from blaming the Claimant for an on-air libel when Alex Fielding was the studio producer to excusing Ms Butt for unacceptable copy while raising the issue unjustifiably with the Claimant. Proof that others would not have been dismissed in similar circumstances is powerful evidence against the employer. Associated Society of Locomotive Engineers and Firemen (ASLEF) v Mr S Brady  WL 1546668
i.The original concerns about the Claimant’s capability were not investigated or discussed. The Respondent instead chose to ‘explore’ options for the Claimant to leave the Network.
ii. Disparate work emails were used retrospectively and indiscriminately to found performance allegations. Colleagues were also used to spy on the Claimant. The difficulty of contextualising such claims is highlighted in the Claimant’s supplementary statement.
iii. The Claimant was denied an opportunity to answer specific allegations of poor performance made against him.
iv. A convoluted, cynically manipulated and deceitful capability process was designed to find fault rather than enhance performance. The conduct of this process is all the more remarkable given the Respondent’s international reputation for broadcast training.
v. Tarrant Steele who heard the appeal against dismissal claims he had read all the relevant documents and conducted a comprehensive investigation. There is little evidence to show these documents were given proper consideration as required.Andrew James Taylor v OCS Group Ltd  EWCA Civ 702
vi. Mr Steele’s conclusions illustrate extreme bias rather than open-mindedness and overall fairness.
i.To indicate the extent of the Claimant’s incompetence the Respondent cites various instances of poor performance in its notice of dismissal. It is the Claimant’s view that considered sensibly and in context these examples merely confirm a predisposition to dismiss. It is unthinkable that forwarding a press release about the London Film Festival to colleagues would be seen by a reasonable employer as cause for dismissal. It is even more unlikely that the Claimant’s failure to attend a course, only available after his dismissal, would be regarded as such.
ii. The notice also lists a number of ‘regular informal meetings’ at which it is claimed improvement plans and progress were discussed and the Claimant offered ‘feedback’ to help him improve his performance. The impression is given that the Respondent made conscientious and coherent efforts to enhance performance before finally and reasonably deciding to dismiss. Closer scrutiny shows that many of these meetings, all implied to be part of a structured capability process, are actually ad hoc conversations and team debriefs. Some of these did not even take place but are cited as evidence that a formal improvement plan and capability process was genuinely implemented.
- If the Respondent, notwithstanding these facts, is able to satisfy the Tribunal that capability was the real reason for dismissal, the decision to dismiss for that reason still falls to be considered under s.98 (4) ERA 1996.
- The question is whether the Respondent acted reasonably in the circumstances in treating capability as a sufficient reason for dismissal.
- It is the Claimant’s contention that no reasonable employer in the Respondent’s line of business would have deemed, on the facts shown, clearly contrived and unproven performance allegations sufficient reason to dismiss an employee whose work it regarded so highly. This is even less credible when such flimsy allegations risk exposing the Respondent to ridicule and puts its considerable reputation at risk.
- s.98 (4) (b) also requires that the fairness of the dismissal be determined in accordance with equity and the substantial merits of the case.
- Although the Claimant believes the conduct of the Respondent can only raise the gravest suspicion of bad faith, ‘in considering whether the employer acted reasonably or unreasonably the tribunal should adopt a broad approach of common sense and common fairness eschewing all legal or other technicality.’ Earl v Slater & Wheeler (Airlyne) Ltd  1 All ER 145 at 150
- The equity of the situation and the substantial merits of the claim are not, ‘things which s.98 (4) (b) merely requires to be taken into account. They are the prescribed statutory test, in addition to the sufficiency of reason, by which the fairness or unfairness of a dismissal is required to be tested.’ Trevor Orr v Milton Keynes Council  EWCA Civ 62
- Equity links an employer’s consistency to reasonableness. The harsher treatment of the Claimant over alleged performance failures is relevant to the Respondent’s reasonableness as well as sufficiency of reason. In penalising an employee ‘much more heavily than others who have committed similar offences in the past, the employer has not acted reasonably in treating whatever the offence is as a sufficient reason for dismissal. Post Office v Fennell  WL 188133
- The correct approach is for the tribunal to establish whether the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted. Iceland Frozen Foods Ltd v Jones  IRLR 439.
- It is the Claimant’s contention that on the facts shown no reasonable employer in the Respondent’s line of business would have considered dismissal a reasonable response.
- The ‘band of reasonable responses’ test applies not just to the substantive reason for the dismissal but also to the procedural aspects of the employer’s actions. Sainsbury’s Supermarkets Ltd v Hitt  IRLR 23
- The Claimant has noted that the capability process was conducted in breach of the Respondent’s agreed procedure and in a manner unlikely to be countenanced by a reasonable employer with similar resources.
- It is also argued that the Respondent has breached the ACAS Code through delay and by its inconsistent approach to similar performance failures. There was no attempt to establish the facts of the case early on and later hearings simply ignored the Claimant’s responses. The Claimant’s explanations at investigatory meetings attracted no consideration apart from being recorded in the meeting notes, and disciplinary action appears to have been anticipated. The Respondent was particularly reluctant to provide details of alleged poor performance to enable the Claimant to efficiently answer the charges. On the facts, there was scant respect for the overall principle of transparency and fairness. This is ironic as fairness lies at the heart of the Respondent’s embedded ethos of BBC values.
- The appeal conducted by Mr Tarrant Steele was crucial in sanitising the capability process and giving it respectability. Without Mr Steele’s endorsement Ms Butt would have been entirely responsible for the dismissal of a senior journalist with 30 years of experience who has spoken in forums at the House of Commons on issues of international development and journalism. Ms Butt was only permanently appointed an Assistant Editor, a level up from the Claimant, three weeks after she dismissed him. In determining whether the Respondent acted reasonably this appeal process is to be considered along with the decision to dismiss. West Midlands Cooperative Society v Tipton  IRLR 112
(ii) Formal Compliance
- The evidence supports a view that formal compliance with the capability agreements was intended entirely for cosmetic effect, to deflect criticism and provide a smokescreen against scrutiny. The claim that a formal four week improvement plan was implemented is only explicable in this context. There is authority that in these circumstances the test of the reasonable employer does not apply. ‘However wide the band of reasonable responses in relation to a grievance procedure may be it cannot encompass a procedure which is a sham.’ Corpora Software Limited v Ms K H Perry  WL 1867217
4. Continuing Acts for the Purposes of Discrimination
- From about the autumn of 2005 there was a dramatic change in the Respondent’s perception of the Claimant, coinciding with a process of intense consultation of staff aimed at re-branding the Network.
- The Respondent alleges that concerns about the Claimant’s capability ‘really began to emerge’ when he joined the Drive program in April 2006. Its initial response was to ‘encourage’ the Claimant to leave.
- From July to October, 2006, the Respondent explored options for the Claimant to move to Radio 4. In 2007 it threatened the Claimant with redundancy offering him £12, 000 if he wished to leave immediately.
- An unusual and tedious effort was made, between July and December 2007, to conduct the Claimant’s appraisal ‘alongside’ the SBJ job specification for the Breakfast programme – to which the Claimant had been transferred.
- Issues were then raised about tasks the Claimant had not been asked to perform or given an opportunity to undertake. Capability proceedings designed to find fault followed. The first ended in April 2009 with a recommendation that the Claimant’s performance be reviewed against the job specification.
- The Respondent began a second capability process in May 2009 resulting in the Claimant’s dismissal with notice on 1 October 2010. The appeal against dismissal was refused on 3 December 2010.
- The capability proceedings, despite a veneer of formality, were characterised by substantive unfairness, cynical interpretation of the capability agreements and the personal humiliation of the Claimant.
- Over five years the Respondent marginalised, humiliated, harassed, bullied and discriminated against the Claimant while ignoring his complaints about the impact this was having on his health.
- The Respondent persisted in bringing unfounded and vacuous allegations which the Claimant could not challenge throughout the process. It assigned the Claimant the most junior of roles while opportunistically exploiting his experience.
- It is clear that the incidents complained of in this period constitute a continuing act leading to the dismissal of the Claimant in October 2010 and the rejection of his appeal two months later. The incidents were inter-linked and discriminatory, and the Respondent was responsible for this continuing state of affairs. Hendricks v Metropolitan Police Commissioner  IRLR 96
5. Discrimination on the Grounds of Philosophic Belief and/or Age
- It is unlawful for an employer to discriminate against an employee by dismissing him, or subjecting him to any other detriment. s.39 (2) (c) and (d) Equality Act 2010/ or reg 6(2) (d) The Employment Equality (Religion or Belief) Regulations 2003/ and reg 7(2) (d) The Employment Equality (Age) Regulations 2003.
- The Claimant submits that his dismissal by the Respondent was an unlawful discriminatory act on the grounds of philosophic belief and/or age.
- Furthermore the Claimant submits that the Respondent in its discriminatory treatment not only treated him less favourably in regard to the protected characteristics but has also subjected the Claimant to a detriment. Ministry of Defence v Jeremiah  3 WLR 857, Chief Constable of West Yorkshire Police v Khan  IRLR 830
The Burden of Proof
- Guidance on the burden of proof, applying to all the discrimination strands, was given by the Court of Appeal in Igen v Wong  IRLR 258 and approved in Madarassy v Nomura International Plc  IRLR 246.
- In the present dispute where the Claimant proves facts from which conclusions could be drawn that the Respondent had treated the Claimant less favourably, it is for the Respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the Claimant’s philosophic belief and /or age.
- The facts show the Respondent has treated the Claimant less favourably (than he treats, or would treat other persons) and to the Claimant’s detriment. The Claimant believes such treatment is on the grounds of his philosophical belief and/or age, contrary to the provisions of the discrimination legislation.
- The evidence shows that colleagues of the Claimant were treated differently and more favourably and provide a measure of comparison. Chief Constable of West Yorkshire v Vento  IRLR 124
- The tribunal must ask what the ‘conscious or subconscious reason for treating the Claimant less favourably was’. The protected characteristic need not be the sole, or even principal, reason for the treatment as long as it has significantly influenced the reason for the treatment. Nagarajan v London Regional Transport  IRLR 572
- The Claimant submits that the facts proved allow the tribunal to justifiably infer in the absence of adequate explanation, that the Claimant had been treated unfavourably, and to his detriment, because of his philosophical belief and/or age.
- Discrimination is recognised as an especial danger to the universal values on which democratic societies are built. It is part of the BBC’s public purpose to sustain citizenship and civil society and it is critical that the public broadcaster be shielded from such corrosive effect.
- ‘It has long been accepted that it is rare to find overt evidence supporting a claim of discrimination. The tribunal is generally tasked with considering what inferences it would be appropriate for it to draw from the primary findings of fact it makes.’ O’Reilly v BBC & Anor 2200423/2010 (ET)
- The EAT in The Law Society v Kamlesh Bahl  WL 21729209 noted: ‘It is trite but true that the starting point of all tribunals is that they must remember that they are concerned with the rooting out of certain form of discriminatory treatment. If they forget that fundamental fact, then they are likely to slip into error… The fundamental question is why the alleged discriminator acted as he did.’
1). Discrimination on the Grounds of Philosophic Belief
(i). BBC Values
- The Respondent is a public broadcaster whose purpose includes sustaining citizenship and civil society, to which end it aims to inform and educate, as well as entertain. This public and democratic responsibility, inspiring creativity and connection, not only makes the BBC special to Britons but hugely influences the outside world’s perception of the nation. BBC values, codified and inscribed on the passes carried by some 21,000 employees, entrench and internalise the BBC’s ethos and purpose.
- The tribunal has described the Claimant’s philosophical belief (in short) as a belief in the higher purpose of public broadcasting.
- The Respondent itself encourages such a belief. Its mission is to inform, educate and entertain. The first of its public purposes as set out by Royal Charter is to sustain citizenship and civil society. It has an embedded ethos built on BBC values that shape its relationship with the audience, its editorial content and its service of the public interest.
- These values include trust, independence, impartiality and honesty, truth and accuracy, and fairness. The BBC’s higher purpose is enshrined in these values, which are explicitly articulated and conscientiously defended.
- The Respondent denies that it could have discriminated against the Claimant as his philosophic belief was unknown to the managers involved. However all BBC employees are expected to follow these values.
- The Claimant lodged a grievance against the initiation of capability proceedings and the imposition of an improvement plan in June 2008 saying he suspected the major issue was a commitment to BBC values.
(ii).Values under Siege
- The public broadcaster does not exist in a vacuum. Professor Georgina Born, in her landmark study of the BBC, describes the crisis that unfolded as the tenets of neoliberalism coalesced into a new common sense, and the language and practice of freemarket economics colonised the heart of public life (p7). Brand-thinking impacted on the embedded ethos of the BBC (p242); public purpose became a facet of strategy and marketing (p160). Efficiency, markets, value for money, audit and accountability became dominant concerns as ends in themselves (p252).
- There is clearly tension between a new managerial model and the embedded ethos of the BBC which requires creative resolution. The problem as Professor Born observes is that ‘the development of marketing and branding required some of the guiding values of BBC services were made explicit in a way they had not previously been… When used punitively to batten down and curtail the particular and expansive imaginative engagement required by good programme making, marketing and branding were revealed in all their bathos as a wholly different order of ‘creativity’. Productive in their place, the problem was that they were wielded by the new layers of management intent on justifying their existence and augmenting their influence and powers within the organisation.’ (p300-1)
- Ms Butt gives some idea of the impact of branding on values. ‘The guests that were within our remit were those that were for the mass audience i.e. across all communities and popular. The remit of the target audience at the time was ‘friend of the family’ and therefore they had to appeal to all generations. As we felt the team was a cross section for the Asian audience, we felt that if we did not know who the person was, from an editorial perspective we did not think the audience would be interested.
(iii) Transforming the Asian Network
Targeting the Youth Market
- A striking shift in the Respondent’s perception of the claimant coincided with a period of intense consultation with staff about the transformation /evolution of the Network. The catalyst was Tim Gardam’s review which identified a need for greater editorial ambition and the introduction of the documentary at the Network, the very changes the Claimant had been advocating for some time. This makes ‘concern’ about the Claimant’s performance even more puzzling.
- Ms Sharma suggests that following staff away days and brainstorming sessions a strategy to use more ordinary contributors and voices emerged.
- Mr Husaini‘s evidence is that a decision was taken under Bob Shennan ‘to use some of the learning’s of 5 Live to target a younger audience.’ Asian Network staffers were then consulted and there was a range of views. Mr Husaini says that it was expected that all staff, including journalists, would work to the strategy, which clearly had already been decided.
- Asian Network was changed to be modelled more closely on 5 Live and Radio 1 Newsbeat, embracing a younger, entertainment focused audience and focusing on stories with relevance.
- Targeting the youth market is an unusual way to encourage greater editorial ambition at a Network with a wider demographic range. It is unsurprising that there was a ‘range of views’ and that questions were asked about a conflict with BBC values and its public service remit. Indeed a primary under-35 target audience was only specified in the BBC Trust’s service licence for the Network in late 2006.
- A month after the Claimant’s dismissal an employment tribunal saw fit to comment on the BBC’s marketing strategy. ‘The discrimination was not justified. The wish to appeal to a primetime audience, including younger viewer, is a legitimate aim. However, we do not accept that it has been established that choosing younger presenters is required to appeal to such an audience. It is not a means of achieving that aim; it would not be proportionate to do away with older presenters simply to pander the assumed prejudice of some younger viewers.’ O’Reilly v BBC & Anor 2200423/2010 (ET)
- The Claimant believes that the use of younger voices as a marketing strategy may well draw similar comment.
- The process was intensely guided by market research. Four listener profiles, Shreeti, Shad, Jas and Mala, were developed to identify ‘target’ stories and guide ‘target’ treatment in line with the new strategy. At an away day the team spent time cutting out pictures from magazines to associate with these profiles.
- There was fastidious attention to the age of guests and whether they sounded youthful. Mr Husaini in his witness statement says the strategy in 2005 was to make our programs appeal to our listeners. Research showed they were not news focused…more likely to read the Sun or not read a paper at all…journalists were encouraged to look for stories in tabloids.
- Mr Husaini admits that targeting the youth market was not successful and audience figures fell. It was then decided ‘to aim for a warmer more inclusive tone that suited Asian families.’
- Referring to this new strategy Ms Siddhu says ‘we knew the formula and remit required from the market research and listening figures.’
Shooting the messenger
- The Claimant was one of those who appealed for a more balanced approach in keeping with the BBC’s public purpose.
- His subsequent treatment strongly suggests the Respondent regarded this as obstructive and less than enthusiastic.
- Mr Husaini’s remarks about the Claimant being a radical who did not go with the flow support this view.
- The Claimant’s previous work, and efforts to encourage more serious journalism, raised questions about his suitability at the new look Asian Network with its more youthful and populist focus. It explains his removal as the producer of Ramadan Reflections despite praise for the series.
2). Discrimination on the Grounds of Age
- There is clear evidence that the Claimant was less favourably treated than his colleagues. Those with whom he worked directly were considerably younger.
- The Claimant’s experience and track record were buried. Mr Aspinwall and Ms Butt claimed they knew nothing about the Claimant’s previous work at the Network. This allowed them to treat the Claimant as an inexperienced arrival of obviously advancing years.
- Disdain for the Claimant’s experience was openly shown by some of the younger members of the team. In the Claimant’s experience this is unusual in a newsroom. It suggests the promotion of a negative perception of the Claimant by managers. The tone of many of the emails about the Claimant supports such a view.
- Although the Respondent claims older people were employed at the Network the Claimant worked in teams of much younger people. The new interactive approach included giving team members a visible presence on the website.
- Mr Aspinwall admitted at the capability hearing on 27 May 2008 that he did not include the Claimant in his regular meetings with his two other SBJs. He also sent out the wrong signals by consulting junior members of the team while ignoring the Claimant.
- Marketing and branding reinforced a stereotypical view that younger people were more ‘technologically savvy’ and had superior technical skill
- The Claimant believes that the conduct of the Respondent violated his dignity and created an intimidating, hostile, degrading, humiliating and offensive environment for the Claimant contrary to s.5 The Employment Equality (Religion or Belief) Regulations 2003 and s.6 The Employment Equality (Age) Regulations 2006/ or s.26 Equality Act 2010 in relation to the protected characteristics of age and religion or belief. Thomas Sanderson Blinds Ltd v Mr S English  WL 722342.
- The evidence already outlined amply supports this view. Additionally the Claimant has reported specific instances of bullying, submitted written complaints and lodged a grievance under the BBC’s Bullying and Harassment Policy.
- In brief from about the autumn of 2005, and certainly from about April 2006, the Respondent wanted to be rid of the Claimant and he was increasingly marginalised.
- The Claimant endured constant nitpicking from the time he joined Breakfast in May 2007 until he was dismissed. Throughout this period unfounded allegations were made about his work with a regularity suggesting attrition and a desire to humiliate.
- The first two work plans essentially provided a framework for re-interviewing and testing the Claimant against the job specification and it is clear that this was the priority. The Claimant has described this as ‘institutional bullying’. As the evidence shows the most innocuous actions – in the line of duty – could result in inquiry and humiliation. Richmond Pharmacology v Dhaliwal  ICR 724
Mr. Devan Maistry
 Born, G (2005), ‘Uncertain Vision: Birt, Dyke and the Reinvention of the BBC’, Vintage, London.