Sent: Saturday, December 14, 2013 1:14 PM

Subject: Urgent: BBC Values and bullying

Hi Michelle

I have written before. Here is an update. The situation is quite desperate and urgent.

Devan Maistry

 

A Case Note

Will the real BBC please stand up? That’s the question urgently begged in Maistry v BBC, a three year legal battle centred on a clash of values at the public broadcaster. Unmasking the impostor will save public resources and undermine a culture of fear and bullying at the BBC, a symptom of much larger social malaise. It would also demonstrate the corporation’s sincerity about the editorial and ethical values it flaunts like a halo and insists its employees “live and breathe”.

Devan Maistry, a journalist who fled South Africa at the height of apartheid to avoid arrest, was dismissed by the BBC in October 2010 for incompetence. In February 2011 an employment tribunal found at a Pre-hearing Review that Mr. Maistry held a philosophical belief which it described (in short) as “a belief in the higher purpose of public service broadcasting”. Philosophical beliefs like religious beliefs attract protection in law. The tribunal ruled that Mr. Maistry could proceed with claims that he had been discriminated against, harassed and dismissed for holding a belief that the BBC itself encourages.

Some background is essential. A philosophical belief must be genuinely held. Fads don’t count. The belief must relate to a weighty and substantial aspect of human life and behaviour, attain a certain level of cogency, seriousness, cohesion and importance, be worthy of respect in a democratic society and compatible with human dignity and the fundamental rights of others. This test for a philosophical belief was established in the famous Nicholson “climate change” case.

The BBC’s Charter says it exists to serve the public interest and its main object is the promotion of its Public Purposes by broadcasting output in line with its mission to inform, educate and entertain. The BBC website says its mission, its vision (to be the most creative organisation in the world) and its values “inform the work of the BBC and are how we promote our public purposes”. Trust, ensured by a commitment to independence, impartiality and honesty, is the cardinal value. Audiences come first and conduct in the workplace is based on mutual respect. The BBC’s public purposes set out by the Royal Charter and Agreement, the constitutional basis for the BBC, include “sustaining citizenship and civil society, promoting education and learning and stimulating creativity and cultural excellence”.

From its inception the BBC has been shaped by an ethos of public service that goes beyond the mere provision of entertainment. Lord Reith, effectively the BBC’s first Director General, believed that by fostering a reasoning citizenry, public broadcasting supported the development of an inclusive, participatory and enlightened democracy. Ninety years on the Reithian ideal still has currency and editorial guidelines set the highest ethical standards.

When Greg Dyke became Director General one of his themes for revitalizing an organization jaded by increasing levels of obsessive management was: “We are the BBC: defining a shared set of values that everyone in the organization understands, believes in and adheres to.” As a result in January 2003 the BBC published a set of written values for the first time in its 80-year history. This values statement now appears on the back of most BBC passes.

Mr. Dyke explained the background: “In the 12 months since launch around 10,000 people across the BBC have taken part in a Making it Happen session – sessions which we call “just imagine” – and in which people talk about their feelings for their job, for the BBC and their colleagues. Later this week I will launch the BBC’s new Values document which is drawn from what those 10,000 members of staff told us…The BBC’s staff are among some of the most creative people I’ve ever met and they really believe in the organisation, its aims and ideals. Every staff survey we do shows that the people working for us feel a real sense of pride in and commitment to the BBC. Most of them joined the BBC because they saw it as an organisation which does something special. That something is public service broadcasting.”

Helen Boaden, former head of news, says on the BBC’s College of Journalism website: “The BBC is a journalistic organisation that lives or dies on its relationship of trust with its audiences, the most precious thing we have. And we’ve earned it over many decades because we’ve lived up to our values of independence, impartiality, fairness, accuracy; telling it like it is and owning up when we get it wrong. And that applies to the most junior broadcast journalist starting out in local radio, like I did, or the most experienced investigator on Panorama. These values are not negotiable, and as long as we continue to think about them, to live them, to practise them in what we do – our journalism – we will keep that astonishing level of trust with our audiences.”

The BBC’s editorial values include Trust, Truth and Accuracy, Impartiality, Editorial Integrity and Independence. Both the Values and the editorial values are rooted in the Charter which sets out the BBC’s public purposes.

Although the BBC articulates these high ideals publicly, it chose to renege on them in court. Employment Judge Pauline Hughes set out the BBC’s argument. “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 that if the claimant was right, then it would follow that beliefs in the aims and values of a whole host of public organizations, if genuinely held, could amount to philosophical belief.”

“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 purpose 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.”

The BBC’s anxiety about employers being held to account for hypocrisy was not shared by the tribunal. Its argument that Mr. Maistry’s belief was akin to a political opinion was also rejected. Judge Hughes found Mr. Maistry held a genuine ‘philosophical belief’ and ruled that the matter could proceed to a full hearing.

She said “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.”

Unions concerned about bullying in the workplace would have benefited from observing the month-long liability hearing which followed in February 2012 but went unreported. None of ten managers (afflicted by regular bouts of amnesia and a phobia about taking notes) felt the need to actually investigate the allegations against Mr. Maistry – or his complaints of bullying and ill treatment – throughout a protracted three year grievance procedure. The focus was on “process” and interpreting union agreements to absurdity.

The only investigation of the alleged performance issues was conducted after he was sacked. A senior manager then discovered Mr. Maistry was essentially a simpleton. He had failed to learn anything after 14 years at the BBC, lacked entry level skills and was unable to edit a basic package. But the BBC also admitted in writing that it had been broadcasting substantial documentaries produced and presented by Mr. Maistry. This is best explained as a miracle.

Legally none of this matters. At employment tribunals judges are solely responsible for establishing the facts and making relevant findings. The BBC claimed it could not have discriminated against Mr. Maistry as it could not have known of his belief in the higher purpose of the BBC. Mr. Maistry’s argument was that the BBC managers must have known as all employees of the BBC adhere to the BBC Values which exist to promote the BBC’s public purposes. As Judge Hughes noted at the Pre-hearing Review it was Mr. Maistry’s position “that everybody working for the respondent understood that references to “BBC values” were references to a shared belief system….”

But at the liability hearing the tribunal found the “BBC Values” are a mission statement unrelated to the BBC’s public purposes. The judgment turned on this single finding. Mr. Maistry had therefore failed to challenge the claim that the managers could not have known of his belief. The tribunal accordingly drew an adverse inference in respect of his credibility which underpinned its findings of fact. The Tribunal made 98 findings of fact, none in favour of Mr Maistry. His claims of unfair dismissal, harassment and discrimination were dismissed. The BBC was awarded maximum costs of £10,000 because he had brought a discrimination claim he knew he could not establish. Mr. Maistry’s appeals against these judgments were also dismissed.

In the wake of the Jimmy Savile scandal, the BBC published in May 2013 its “Respect at Work Review” acknowledging a culture of bullying and harassment at the corporation. The BBC Management Board said in the foreword to the report: “People expect more from the BBC. Our audiences and licence fee payers expect high standards of creativity, impartiality and distinctiveness. They expect us to behave with the utmost integrity and decency. They expect us to live up to our stated Values…The BBC must be an organisation which lives and breathes its Values”

The report also said “The BBC Values are widely disseminated and published on our internal and external websites. They are printed on the back of most BBC identity cards. They represent a distillation of the essential mission and vision of the BBC, and should be at the heart of everything the BBC does, and the way in which it conducts itself…The BBC is an organisation which inspires a strong affiliation from the majority of people working with it. The BBC mission is often a personally shared endeavour and it is a cause for real pride to be part of it. Our staff and managers believe strongly in the BBC Values and are committed to trying to make the BBC a good place to work.”

The report confirmed the “BBC Values” are the bedrock of the corporation; acknowledged the BBC has not placed enough emphasis on its Values in recent years and wants that to change. It promised a Value’s renaissance to purge the corporation of bullying and harassment.

In July 2013 Employment Judge Hilary Harding was asked to reconsider her finding on the basis that this new evidence completely contradicted the BBC’s claim that the “BBC Values” are no more than a mission statement. She refused the application saying it was not in the interests of justice to hear this evidence more than a year after she had given her judgment. The report had “no relevance to the Tribunal’s finding that the respondent witnesses understood BBC Values to refer to the BBC’s mission statement known as the BBC Values…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 is plainly a circular argument.

Mr. Maistry was granted an oral hearing in October 2013. He argued that leave to appeal against the original judgments should be granted because the tribunal’s reasoning in finding the “BBC Values” are a mission statement was based on a number of errors of law. The BBC had actually given no evidence to support the claim made – in a single sentence – by its legal representative that the “BBC Values” are effectively a mission statement. None of the BBC managers had made this claim either in their witness statements or under cross-examination. Moreover the Tribunal’s reason for the finding amounted to a non-sequitur. It did not follow that because Mr. Maistry confirmed the “BBC Values” are the “BBC Values” they are a mission statement. The BBC needed to prove that first. Moreover the Tribunal had wholly ignored Mr Maistry’s submissions about the “BBC Values” denying him a fair hearing.

Apart from being unsound the finding was also improper. The tribunal should have applied the test for philosophical belief set-out in Nicholson and allowed Mr. Maistry to make submissions. It was also inequitable. The BBC is able to publicly extol the virtues of the “BBC Values” while presenting a misleading and contradictory account of the Values before a tribunal.

Mr. Maistry’s failure to challenge the assertion of the BBC that it could not have known of his belief was heavily penalised. The BBC‘s failure to challenge his assertion that the BBC itself encouraged a belief in its higher purpose was not. Even if Mr. Maistry had not challenged the witnesses he had given clear and extensive notice that he intended to impeach their testimony. The BBC managers could not claim they were ambushed or denied an opportunity of putting their case. If the BBC’s assertion stood for lack of challenge it led to the absurd finding that BBC managers applied the “BBC Values” without any knowledge of their purpose.

The drawing of an adverse inference against Mr. Maistry did not relieve the Tribunal of a duty to consider evidence in his favour given by BBC managers whose credibility was not questioned. The Tribunal was obliged to explain why it omitted material and relevant evidence – like the impossible claim that although Mr. Maistry was unable to edit a basic package he was able to produce sophisticated documentaries. Even if the Tribunal found that Mr. Maistry’s claim of discrimination had been misconceived from the start it was not unreasonable for him to have believed in and relied on the orthodox view of the BBC’s values and their purpose in bringing his claim.

The appeal was dismissed. The Employment Appeal Tribunal found none of the grounds of appeal had a reasonable prospect of success and that Mr. Maistry was seeking to attack the findings of fact made by the tribunal. The case has come this far not least because fees for bringing claims have not been required in the past. That has changed. An appeal must be lodged in the Court of Appeal by 30 December 2013. Perhaps the NUJ will stand up.