In the Court of Appeal                                                               Appeal Reference: A2/2013/3785

Devan Maistry                                      v                                    BBC

Appellant                                                                                    Respondent

Skeleton Argument: Application for Leave to Appeal

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Introduction

1. The appellant raised ten points of law at the Rule 3(10) Hearing on 30 October 2013. One of those related to his claim that statements made and endorsed by the BBC Management Board and published in the BBC’s “Respect at Work Review” in May 2013 met the test in Ladd v Marshall [1954] 1WLR 1489  for the admissibility of new evidence. The appellant has effectively withdrawn this submission as no appeal was lodged against EJ Harding’s refusal to review her judgment in the light of this evidence (pp 43-44, paragraphs 8 and 9). However the appellant submits the Reasons for that refusal have provided significant clarifications of the original judgment given on 3 April 2012. The Honourable Lady Stacey’s judgment handed-down on 5 December 2013 says little specifically about the remaining points of law raised. Generally she finds none of these nine points have a reasonable prospect of success and in her opinion the appellant is seeking to attack the findings of fact made by the Tribunal (p 45, paragraph 13). The appellant submits they are valid points of law supported by authority, hold considerable force and bear heavily on the judgment. The remarks of the Honourable Mr. Justice Langstaff have been especially helpful given a judgment which often requires resort to inference. He said (p 65, paragraph 4): “The Employment Tribunal’s decision was simple to understand…to pursue his discrimination claim he needed to show he was less favourably treated than those who did not share his philosophy, and because of his philosophy. That means that those who acted against him must have known that he had the particular beliefs to be relied on. They said they didn’t know. He never challenged that. There was no evidence they knew. So – the claimant brought a claim when he should have realized he could never establish it.”  Justice Langstaff’s comments have enabled a sharper focus on the essential issues.

2. The dispute was decided by the Tribunal’s finding that the ‘BBC Values’  – values  that employees must adhere to and apply – are in fact a mission statement unrelated to the corporation’s  public purpose. This finding undermined the appellant’s credibility, swept away all evidence in his favour and destroyed his case. It is based on a brief submission of the respondent’s representative which is completely contradicted by what the BBC publicly says about the importance of its Values. EJ Harding dismissed the application to review her judgment on the basis that the ‘Review’ was irrelevant to the appellant’s case. This argument as shown below is spurious. However she did not reject the credibility of the ‘Review’.

3. In the foreword to the ‘Review’ the BBC Management Board says (p 54, paragraphs 1 and 2): “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. They are right to do so. The people who help make the BBC what it is – our staff, our freelancers, our managers, our leaders, our contributors, our suppliers and our partners – expect more of us too. They have a right to expect the BBC to be an organisation which behaves with the highest ethics and standards, where their talents, hard work and loyalty are matched by an experience or relationship with the BBC which is truly rewarding, fulfilling, positive and respectful. The BBC must be an organisation which lives and breathes its Values”

4. The ‘Review’ says, “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 (p 56, paragraph 5)…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 (p 61, paragraph 1).” The ‘Review’ promises a renaissance of the BBC Values (on which “it has not placed enough emphasis in recent years”) as a response to a culture of bullying and harassment at the corporation (pp 62 -64 ). The appellant suggested the same five years earlier. The ‘Review’ vindicates the appellant’s stance and supports his submission that the BBC itself encourages a shared belief in its higher purpose.

5. The appellant does not rely on the ‘Review’ as evidence. But it confirms the accuracy of the appellant’s rejected submissions and highlights the contradiction between the respondent’s claims in court and the BBC’s public statements. By traducing its Values to deflect claims of harassment and discrimination the BBC attracts charges of opportunism and hypocrisy and puts its reputation at risk. It also discredits the very strategy it relies on to purge the corporation of bullying and harassment. In the BBC’s statement of Values primacy is given to Trust. “Trust is the foundation of the BBC: we are independent, impartial and honest.” It is patent that the respondent has breached the Trust of both its employees and the public.

The Issue

6. At the heart of the dispute is the respondent’s claim that it could not have known of the appellant’s belief in the higher purpose of the BBC and therefore could not have discriminated against him. But such a claim is implausible as the BBC insists that all employees adhere to the BBC Values which exist to promote its public purposes. The appellant said so in his Skeleton Argument (p 272) exchanged before the hearing began in February 2012. The Tribunal makes no reference to this refutation of the respondent’s argument. However the Tribunal found – on the basis of the submission of the respondent’s representative and little else -the BBC Values are a mission statement unrelated to the BBC’s higher purpose. The BBC managers could therefore claim to adhere to the Values but deny any knowledge of a shared belief. The appellant responded by painstakingly describing the BBC’s value system to demonstrate this contradiction. The BBC’s Charter says it exists to serve the public interest and its main object is the promotion of its Public Purposes (Article 3) by broadcasting output in line with its mission to inform, educate and entertain (Article 5).  The BBC website says:

Mission and values

Our mission, vision, and values inform the work of the BBC and are how we promote our public purposes.

The public purposes are set out by the Royal Charter and Agreement, the constitutional basis for the BBC.

Our mission
To enrich people’s lives with programmes and services that inform, educate and entertain.

Our vision
To be the most creative organisation in the world.

Our values

Trust is the foundation of the BBC: we are independent, impartial and honest.
Audiences are at the heart of everything we do.
We take pride in delivering quality and value for money.
Creativity is the lifeblood of our organisation.
We respect each other and celebrate our diversity so that everyone can give their best.
We are one BBC: great things happen when we work together.
The Royal Charter and Agreement also sets out six public purposes for the BBC.

7. The BBC Values are neither optional nor negotiable. Managers ensure compliance and conduct annual appraisals at which employees are required to explain how they have applied the Values. The BBC says “Our mission, vision, and values inform the work of the BBC and are how we promote our public purposes.” Managers are obliged to assume all BBC employees believe in the BBC’s higher purpose because they adhere to and apply the Values.  Director Generals have consistently claimed that managers and staff at the BBC believe in the aims, ideals and values of the BBC and that the corporation serves a noble, special and public purpose.  Based on this everyday view of the BBC Values and their purpose the claim of the respondent witnesses that they could not have known of the appellant’s belief – a belief they must share – is untenable.

8. Moreover, at a Pre-Hearing Review in February 2011, EJ Hughes found that the BBC’s aims and values are deserving of the status of a philosophical belief. “It was the claimant’s case that there was no authority for the 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 (p 330, paragraph 14)…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 (p 328, paragraph 9).”

9. EJ Hughes rejected this argument on the basis of the criteria set out in Section 24 of the EAT’s judgment in Nicholson.  “I accepted the claimant had a genuine and strongly held belief in what I will describe in short as the higher purpose of public service broadcasting (p 328, paragraph 8)”. She said (p 331, paragraph 18), “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.”

10. At the subsequent liability hearing the Tribunal found that the BBC Values are a mission statement “distinct from the belief which the claimant holds in the higher purpose of public service broadcasting, which has been found to be a protected belief (p 156, paragraph 21).”  In giving Reasons for refusing an application to review the judgment EJ Harding clarifies the distinction (p 47, paragraph 6). “For the avoidance of doubt EJ Hughes at the Pre-hearing Review found that the claimant did have a protected philosophical belief – namely a belief in the higher purpose of public service broadcasting and that when he referred to “BBC Values” this is what he meant. EJ Harding’s Tribunal, whilst acknowledging the claimant’s protected philosophical belief, found as a fact that the respondent’s witnesses understood the term to mean something different – namely the term referred to the BBC’s mission statement, known as the BBC Values, which emphasized the importance of certain matters such as Respect and Trust.”  (The importance of ‘certain matters’ (the Values) clearly derives from their role in informing the BBC’s work and promoting its public purposes.)  EJ Hughes canvassing the issue of whether the appellant had carried out a protected act (p 332, paragraph 21) said: “It was his position that everybody working for the respondent understood that references to “BBC values” were references to a shared belief system… I accepted that this was his way of referring to his underlying philosophical belief in the higher purpose of public service broadcasting…”  It is reasonable to infer that in finding the BBC Values are a mission statement distinct from the appellant’s belief in the higher purpose of public service broadcasting, EJ Harding found the Values did not relate to the BBC’s public purposes and a shared belief system.

11. EJ Harding reconciles the conflicting findings of the two tribunals arguing that the first applied to the appellant; the second to the respondent witnesses. The respondent witnesses can consistently claim that on their understanding of the BBC Values, confirmed by EJ Harding’s Tribunal, they could not have been aware of a shared belief. On the appellant’s understanding, confirmed by the Tribunal of EJ Hughes, he was entirely reasonable in bringing a claim based on the assumption of a shared belief. Clearly however the finding of EJ Hughes was rejected by EJ Harding when she found the appellant’s claim was misconceived from the start. EJ Hughes found the aims of the BBC are profoundly more than a mission statement (a goal to aspire to) and amounted to a belief because those purposes – and the values that promote them – arise from an underlying philosophical belief, “a shared belief in the importance of public service broadcasting in a democratic society”.  It is reasonable to expect that belief to be shared most immediately by employees of the BBC and it is unsurprising that Director Generals have consistently confirmed that employees share a belief in the organisation’s higher purpose. In submitting its Values are no more than a mission statement the respondent betrays the belief that inspired the BBC’s creation. EJ Harding’s Tribunal, in finding the BBC Values – inextricable from the purpose they serve- to be a mission statement, rejects the very reason for the existence of the BBC.

Points of Law

There is no evidence for finding the BBC Values are a mission statement.

12. The appellant has argued that this finding is based on a brief submission made by the respondent at the end of a month-long hearing.  In his Final Skeleton Argument (p 225, paragraph 45.b) the respondent’s representative says: “At page 10 of the Claimant’s Skeleton Argument, the Claimant went through the “BBC’s values”, which effectively amounts to a mission statement and is very similar to the “BBC’s values” set contained in the identity cards of most BBC employees – see paragraph 65 of Jonathan Aspinwall’s statement. These “BBC values” are highly commendable; and most BBC employees would be proud to subscribe to these values. If the main protagonists did subscribe to these BBC values, as they contend they did, they could not have discriminated or harassed the Claimant because of his belief in “BBC values”. The Tribunal is referred to Mr. Jonathan Aspinwall’s witness statement in which he lists the Values (p 310, paragraph 65). Mr. Aspinwall does not claim the BBC Values are a mission statement. There is no record in the liability judgment of any witness giving evidence that the BBC Values are a mission statement. None of the witnesses claimed in their witness statements that the BBC Values are a mission statement. The respondent’s representative had indeed argued at the Pre-Hearing Review that the BBC’s aims and values were no more than a mission statement but this had been rejected. The respondent’s representative said nothing about the BBC Values being a mission statement in his Skeleton Argument. There is no record of him putting this claim to the appellant who patently held a contrary view expressed in submissions on the point (pp 256-257, 272-274). The respondent’s representative cited no policy document or statement made by the Director General, the Management Board, the BBC Trust or indeed any BBC executive in support of his submission that the BBC Values are best regarded as a mission statement. A finding made in the absence of any evidence is an error in law. (British Telecommunications v Sheridan [1990] IRLR 27)

13. In rejecting this point of law Lady Stacey notes (p 43, paragraph 6): “He did not make detailed reference to all these cases, but he argued in his written submissions that it was necessary for any Employment Tribunal to give clear reasons. In that connection, he referred to British Telecommunications which was not on his list of authorities…” The appellant provided a bundle of cases with an index. A number of cases (including Chapman v Simon [1994] IRLR 124, CA; Greenwood v NWF Retail Ltd UKEAT/0409/09/JOJ and British Telecommunications v Sheridan [1990] IRLR 27  could not be included as they appeared on the list of ‘familiar cases’ available to the Tribunal. However the appellant’s legal arguments were based on a written note headed ‘Rule 3(10) Hearing – Submissions’ put before Lady Stacey along with the appellant’s Skeleton Argument. The appellant referred to British Telecommunications plc v Sheridan [1990] IRLR 2735 as authority for the proposition that a finding in the absence of any evidence is an error in law. Cases must be considered in accordance with agreed or undisputed facts. A decision of fact made by a Tribunal is an error of law if there is no evidence to support it, or the conclusion is perverse (paragraph 31.) The absence of evidence to support a finding of fact has always been regarded as a pure question of law. A decision unsupported by any evidence has to be characterised as perverse (paragraph 35).

The reasons given for finding the BBC Values are a mission statement are not adequate or intelligible.

14. The Tribunal found (p 112, paragraph 7.8): “Like many corporate organisations the BBC has a set of values, or a mission statement, which it publishes and expects its employees to follow.” The Tribunal gives no reason for this finding but simply defines the BBC Values as a mission statement. However in reference to statements made by the appellant during the capability process the Tribunal (p 156, paragraph 21) says, “…the evidence 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.”

15. The Tribunal does not identify “the evidence before us from the respondent” and is not required to do so where the evidence referred to is obvious. In this case the appellant must assume the “evidence” to which the Tribunal refers is the submission of the respondent’s representative – that the BBC Values “effectively amounts to a mission statement” – and the BBC statement of Values, the BBC Values, which are cited in the finding. The appellant confirmed these are the BBC Values. To infer from this that the Values are a mission statement is unsound. The argument goes: The respondent’s representative claims the BBC Values are a mission statement (unproven). The BBC has a statement of Values (BBC Values) which the Tribunal has seen (true). The appellant confirmed these Values are the BBC Values (true). Therefore the BBC Values are a mission statement. The Tribunal’s conclusion is a non-sequitur. It does not explain how the tribunal got from its primary fact – the BBC has a statement of Values – to its conclusion that the Values are a mission statement “distinct from the belief which the claimant holds in the higher purpose of public service broadcasting” without first finding that the submission of the respondent’s representative is indeed a fact to be relied on. It is a circular argument.

16.  A similar fallacy is invoked by EJ Harding when she claims the “Respect at Work Review” supports the respondent’s submission that the BBC Values are a mission statement (p 47, paragraph 6). “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 was found as a fact to be the case.” This time the argument goes: The respondent witnesses say that Respect is one of the BBC Values (true). The BBC confirms that one of the BBC Values is Respect (true). Therefore the BBC Values are a mission statement (the respondent’s submission/case accepted as a ‘fact’ without evidence by the Tribunal).  This conclusion is again unsound and circular. The most that can be said – until the Values are shown to be a mission statement – is that the witnesses were correct in stating Respect was one of the BBC Values.

17. The Tribunal’s reasoning in dismissing as irrelevant statements about the BBC Values made and endorsed by the Management Board in the ‘Review’ is also unsound. The Tribunal says (p 47, paragraphs 3 and 5): “He seeks to rely on a 61 page report published by the respondent in May 2013. He submits that this report amounts to new evidence relevant to the issues in his case…In any event the report adduced as new evidence has no obvious relevance to the claimant’s tribunal case. We are told on page 6 that the scope of the report is to consider the extent to which “the BBC Value of Respect is upheld at the BBC.”” The appellant however has not sought to rely on the Review as a whole even though it says (p 58, paragraph 9) “The particular forms of unacceptable behaviour which are the focus of the Review are harassment and bullying.” In his application the appellant states clearly (p 49, paragraph 1). “The report acknowledges that there is evidence of bullying at the BBC and that staff are fearful of complaining. The claimant relies on passages in the first 13 pages of the report.” These passages highlighted by the appellant confirm the importance of the BBC Values, that all staff and managers strongly believe in the Values and that the Values exist to promote the BBC’s higher purpose. The Tribunal does not say these passages cannot be taken literally or at face value. Instead it uses a straw-man argument to arrive at a finding that allows evidence which corroborates the appellant’s submissions and undermines the respondent’s to be ignored. The appellant submits such arguments do not discharge the Tribunal’s obligation to give adequate and intelligible reasons for its finding that the BBC Values are a mission statement

18. The following authorities were cited:

Tran v Greenwich Vietnam Community [2002] EWCA Civ 553

The Tribunal has a legal obligation to explain how it got from its findings of fact to its conclusions as opposed to simply reciting the background and the competing contentions, making opaque references to the evidence and announcing a conclusion. The giving of adequate reasons tempers the decision making process and demonstrates to appellate tribunals that acceptable answers have been given to the right questions (paragraph 17).

Anya v University of Oxford [2001] IRLR 377

An inadequately reasoned judgment does not allow parties to understand the outcome and whether it is appealable. The want of adequate reasons has been held to be a free-standing ground of appeal. Adequate and intelligible reasons are required under Article 6 of the ECHR and ss. 2 and 6 of the Human Rights Act 1988 (paragraph 12).

Clark v Clark Construction Initiatives Ltd [2008] EWCA Civ 1446, 2009

Tribunals have a universal obligation to give reasons which are candid, intelligible and coherent. The basis for a decision is transparent if reasons are properly drawn (paragraphs 5 and 6).

Chapman v Simon [1994] IRLR 124, CA

A Tribunal must first make findings of primary fact from which it is legitimate to draw the inference. Without such findings there is no inference but – at best – speculation paragraph 33.3).

The Tribunal gives no reason for rejecting the appellant’s extensive submissions about the BBC Values. The Tribunal denied the appellant a fair hearing by ignoring his submissions.

19. The respondent’s representative simply asserted the BBC Values are a mission statement. The appellant by contrast made extensive submissions (referred to below) consonant with the BBC’s description of its Values as “a distillation of its essential mission and vision.”  The Tribunal ignores the appellant’s submissions and gives no reason for preferring the respondent’s submissions. The appellant submits the Tribunal has not complied with r 30(6) by simply repeating the closing written submissions of the respondent – citing the BBC Values and asserting they are a mission statement – while ignoring those of the appellant. The Tribunal does not therefore make a clear distinction between submissions and findings of fact. Moreover by wholly ignoring the appellant’s submissions the Tribunal denied him a fair hearing.

20. The following reference to authorities was provided.

Anya v University of Oxford [2001] IRLR 377

A tribunal should state in relation to any significant finding the nature of the conflicting evidence and the reason why one version has been preferred to another. It is always unacceptable for a tribunal to assert its conclusion in a decision without giving reasons (paragraph 24).

English v Royal Mail Group Ltd UKEAT/0027/08 [2008] All ER (D) 48 (Jul)

A tribunal is obliged to explain why it rejected at least the main points made by a party, and even more specifically so when it adheres closely to the submissions of the other party. There cannot be a fair trial when the submissions of one party are wholly ignored substantially undermining due process (paragraphs 11 and 12).

The finding was improper; the Tribunal erred in not applying the criteria in Nicholson

21. The appellant submits the Tribunal was required to apply the criteria in Nicholson before finding the BBC Values are a mission statement – the more so as EJ Hughes had found the aims and values of the BBC were important enough to be regarded as a philosophical belief. This would have put the Values on the back of BBC passes in context. The BBC has always been guided by an embedded ethos of BBC Values. When Greg Dyke became Director General one of his themes for revitalizing a BBC 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.”[1] As a result in January 2003 the BBC published a set of written values for the first time in its 80-year history. 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.”[2]

22. 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.”

23. The BBC’s editorial values include Trust, Truth and Accuracy, Impartiality, Editorial Integrity and Independence. The BBC says its Values and editorial guidelines are rooted in the Charter which sets out its public purposes. The appellant submits that in order to reach a finding that the BBC Values are a mission statement and not a philosophical belief, the proper course was for the Tribunal to apply the test in Nicholson.  A “philosophical belief” must not be a current opinion or viewpoint, must relate to a weighty and substantial aspect of human life and behavior, attain a certain level of cogency, seriousness, cohesion and importance, be worthy of respect in a democratic society, not incompatible with human dignity or in conflict with the fundamental rights of others. The belief must be genuinely held. Grainger plc v Nicholson [2010] IRLR 4 EAT (paragraph 24). The appellant submits that on the basis of this test adherence to the BBC Values amounts to a philosophical belief and not subscription to a mission statement.

The Tribunal erred in drawing an adverse inference.

24. The Tribunal’s view was that the appellant had failed to challenge the claim of the BBC managers that they could not have discriminated against him as they did not know of his belief. The Tribunal does not say why it disregarded the appellant’s extensive cross-examination of the respondent witnesses about the BBC Values. It is reasonable to infer it did so because it found the witnesses understood the BBC Values to be a mission statement while the appellant regarded the Values as an expression of the BBC’s public purposes. An added reason for drawing the adverse inference (p156, paragraph 21) was the appellant’s failure to complain about his discriminatory treatment as alleged by the respondent (p 208, paragraph 24.3). At the Costs Hearing in August 2012 the appellant reminded the Tribunal (p 88-89) that the following complaint (made in June 2010 to Keith Beech) had been put before the Tribunal on two occasions during the liability hearing. “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.” The Tribunal does not acknowledge a significant error of fact contributed to its decision to draw an adverse inference. One must infer therefore that this grievance confirmed by Mr Beech was considered and rejected by the Tribunal because the appellant did not specifically relate his complaint to age (the colleagues referred to were much younger) or philosophical belief (the issue was a conflict over Values). The same must be assumed of the various complaints outlined by the appellant in his closing written submissions (pp 254-256) despite the concern with BBC Values articulated from June 2008 to October 2010. The appellant submits that both r 30(6) and the common law require the Tribunal to explain why witness evidence on a material issue is rejected.

25. The respondent claims its witnesses only learned of the appellant’s belief following the Pre-Hearing Review in February 2011. EJ Hughes, as noted above, said: “It was his position that everybody working for the respondent understood that references to “BBC values” were references to a shared belief system… I accepted that this was his way of referring to his underlying philosophical belief in the higher purpose of public service broadcasting…” The BBC did not challenge this assertion. None of the witnesses after learning of this finding have argued that the BBC Values are in fact a mission statement unrelated to the corporation’s public purpose and there is no shared belief in the mission of the BBC. By way of example Kevin Silverton said (p 317, paragraphs 22 and 23), “Devan never elaborated with me his asserted belief and we never discussed the purpose of a public service broadcaster…I understand BBC values to be the core principles of the BBC business… we would welcome and encourage any member of staff who wanted to promote these values.”  Mr. Aspinwall says (p 310, paragraph 65): “As BBC employees, we all follow the BBC values; it is what we do and all programmes are made on the basis of the BBC values.” Clearly there is a shared belief based on ‘core principles’ of the BBC.

26. The appellant included the following in his Skeleton Argument exchanged on 2 February 2012 (p 272) and in his final written submissions.

Discrimination on the Grounds of Philosophic Belief

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 service 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.

27. The appellant’s portrayal of the Values is consistent with the view of the BBC that the Values serve to promote its public purpose. The appellant also argues that a formal deference to the BBC Values may cloak competing interests at variance with the Values. He submits that a strategy for targeting and capturing the youth market using the tools of marketing, branding and market research overwhelmed the public service ethos ring-fenced by the BBC Values. In support the appellant cites Professor Georgina Born’s landmark study ‘Uncertain Vision: Birt, Dyke and the Reinvention of the BBC’ (2005) based on extensive access to BBC program makers. The appellant notes that a by product of this managerial culture is a form of censorship entirely in conflict with the BBC Values (pp 272-274).

28. The respondent’s representative does not address these arguments. He does not cite any policy document which shows the Values are not intended to serve the BBC’s public purposes; he does not challenge the appellant’s assertion that the BBC itself encourages a belief in its higher purpose by insisting on adherence to the BBC Values. Instead in his Final Skeleton Argument the respondent’s representative says (p 225, paragraph 45.a): “All of the respondent witnesses gave evidence that they were unaware of the Claimant’s asserted philosophical belief until the Tribunal proceedings. The short point is that if that is correct they could not have discriminated or harassed the claimant because of his asserted philosophical belief at the time.” He also argues that, “If the main protagonists did subscribe to these BBC values, as they contend they did, they could not have discriminated or harassed the Claimant because of his belief in “BBC values”.

29. The latter statement conflicts with the finding of the Tribunal which shows a clash over the Values was inevitable. EJ Harding (as noted above) confirmed the respondent witnesses held a very different perception of the Values from that of the appellant. On this basis the Tribunal found the appellant had failed to challenge the claim of the respondent witnesses not to have known of his belief. However such a conclusion would itself depend on the finding that the BBC Values are a mission statement. It is implied the appellant’s submissions about the BBC Values were rejected for lack of credibility (no other explanation is given). Again this is contingent upon the finding that the appellant failed to challenge the witnesses which in turn depends on the Tribunal’s finding that the BBC Values are a mission statement disconnected from its public purposes.  In Meek v City of Birmingham District Council [1987] IRLR 250, CA,   Lord Bingham said: “The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises.” The appellant submits that the judgment has been unhelpful in this respect.

30. Lord Morris cautioned in Browne v Dunn (1893) 6 R. 67, H.L there can be no “hard-and-fast rule as regards cross-examining a witness as a necessary preliminary to impeaching his credit”. The appellant submits that inviting the witnesses to deny any knowledge of his philosophical belief was not the only way of challenging them. Confirming their belief in the BBC Values and that the Values served the BBC’s public purposes effectively exposed the contradiction in their witness statements. It is impossible to claim adherence to the Values and ignorance of a common belief in the BBC’s higher purpose at the same time. Cross-examination was also aimed at establishing a prima facie case of discrimination by demonstrating concretely the plausibility of the appellant’s contention that he was unfavourably treated because he was critical of breaches of the Values by managers. There was no unfairness. The respondent witnesses had every opportunity to argue the Values were a mission statement unrelated to the BBC’s public purposes. They did not. The witnesses cannot claim to have been ambushed as was the appellant who could not respond to the claim – made almost in passing at the very end of the hearing – that the BBC Values are a mission statement

31. The Tribunal found the appellant had failed to challenge the witnesses or make a single complaint of discrimination. It further claimed the appellant’s evidence was inconsistent. The relatively insignificant examples given (pp 156-157, paragraph 21) are tediously analysed (pp 90-99) for the record. The reasoning is fallacious and circular and the appellant’s lack of credibility is assumed in the first instance. “Accordingly we considered there to be serious issues with the claimant’s credibility, and this has underpinned many of the findings of fact that we have made when a dispute of fact occurred (p 157, paragraph 21).” The Tribunal made 98 findings of fact; none in favour of the respondent. The appellant submits that if the respondent’s assertion (that it could not have known of the appellant’s belief) stands for lack of challenge, an absurd claim – that the Values are applied by senior managers without knowing their purpose – becomes a finding of fact.

32. The appellant submits that in drawing the adverse inference the Tribunal erred in its application of Part vii s 708 (i) (Bar Standards Board, Conduct of Work by Practising Barristers which incorporates the rule in Browne v Dunn (1893) 6 R. 67, H.L.  Part vii s 708 (i) requires that evidence which contradicts the testimony of a witness is put to that witness. However the judgment in Browne v Dunn (1893) 6 R. 67, H.L. clearly identifies two exceptions to this ‘rule’. Lord Herschell says a failure to cross examine a witness upon a point would not be unfair where it is “perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.” The appellant submits that the arguments provided in his Skeleton Argument four days before the hearing and referred to above satisfy the requirement for full notice and that the Tribunal erred in applying the rule.

33.  Lord Morris provides authority for a second exception to the rule saying that “a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box”.  On the evidence of what the BBC publicly says about the Values on which it insists, it is the appellant’s submission that the respondent witnesses’ denial of any knowledge of a shared belief in the mission of the BBC is incredible testimony. It is submitted that even if the Tribunal found the appellant failed to challenge the respondent witnesses, these exceptions to the rule applied.

34. In his Skeleton Argument the appellant clearly set-out his reasons for disputing the respondent’s claim that it could not have known of his belief. He exposed the contradiction in cross-examination. He continued to press the point in his closing written submissions (pp 256-257) referring to the BBC pass shown to the Tribunal and saying “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.” A failure to cross-examine may imply that the issue is no longer pursued. But whether such a conclusion can be drawn depends on the circumstances. The appellant’s contention – that the BBC Values are inextricable from and integral to the promotion of the BBC’s higher purpose – remained very much alive. The Tribunal was bound to make findings about a significant issue in dispute even if the appellant had not asked questions about the matter.

35. It is equally clear that the rule was applied inconsistently to the advantage of the respondent. The appellant’s assertion – that the BBC Values exist to serve its higher purpose and the respondent witnesses must therefore have known of the appellant’s belief – was never challenged. The respondent has never put to the appellant that the BBC Values are a mission statement distinct from the Corporation’s higher purpose, a finding of fact on which it completely relies. Yet no adverse inference was drawn in respect of the respondent’s credibility and no account given of how this dispute of fact was resolved without considering the appellant’s submissions.

36. The following authority was cited.

Roberts v Carlin UKEAT/0183/09/DA

The importance attached to an employment tribunal’s reasons for judgment is now enshrined in r 30(6) of the Employment Tribunal Rules of Procedure 2004.  The issues must be identified; there must be a concise statement of the applicable law and how it has been applied to the relevant facts found by the employment tribunal. The case law also emphasises the need to make findings of primary fact and to explain where a conflict of evidence arises why the evidence of one witness is preferred to another’s.  It is equally of importance in the context of a case to explain why witness evidence on a material issue is rejected (paragraphs 45-47).

Browne v Dunn (1893) 6 R. 67, H.L.

Where a witness has been given full notice beforehand that there is an intention to impeach the credibility of his testimony a failure to cross-examine on the point will not be unfair (pp 70-71)

There are no hard and fast rules for cross-examination. It is not essential to cross-examine a witness whose testimony is patently a tall story in order to impeach his credibility on the issue (p 79).

King v Royal Bank of Canada Europe Ltd [2012] IRLR 280

A dispute does not necessarily cease to be an issue in the case because a party – particularly a litigant in person – omits to cross examine about it. A tribunal must consider all the circumstances before concluding the issue is no longer pursued. It may be necessary for a tribunal before drawing an adverse conclusion against the opposite party to offer it an opportunity to respond.  But the tribunal must make findings if the matter remains in dispute (paragraphs 74-77).

The Tribunal erred in applying the adverse inference it drew with regard to the appellant’s credibility.

37. The Honourable Justice Langstaff also says (p 65) it was not unreasonable for the appellant to have brought a claim of unfair dismissal. The appellant believes his case would have been stronger had the Tribunal not ignored material evidence. The appellant submits that the drawing of an adverse inference did not relieve the Tribunal of a duty to consider relevant evidence favourable to the appellant given by respondent witnesses whose credibility was not impeached.

38. The only investigation of the capability allegations was undertaken by Tarrant Steele after the appellant was dismissed following a capability process lasting more than three years. This, a significant fact in itself, is not noted. In his witness statement Mr Steele also provided the clearest view of the capability issue. The appellant was a simpleton; he had learned nothing after 14 years at the BBC. “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 (p 290, paragraph 39).” It was put to Mr Steele that such a claim was impossible as the BBC admitted in a written statement handed to the Tribunal (pp 277-278) it had been broadcasting substantial documentaries produced and presented by the appellant. The implications ought to have been especially apparent to an ‘industrial jury’. The production of documentaries (critically acclaimed at the BBC Program Review Board) by an employee unable to construct a package – the simplest of broadcast production tasks – is best explained as a miracle. It seriously questions the respondent’s claim that ‘capability’ was a genuine reason for dismissal. The respondent strongly objected to the Tribunal hearing any part of these documentaries although some were still being broadcast on its website. However, the appellant’s cross-examination of Mr Steele on this crucial point is entirely ignored by the Tribunal. It finds (p 147, paragraph 7.98) that “Mr. Steele’s investigation and decision rationale was thorough”. The appellant can only infer the Tribunal considered and rejected the appellant’s submission – that the testimony of Mr. Steele was contradicted by the written evidence of the respondent – and indeed did the same in respect of all material and relevant evidence favouring the appellant which was omitted.

39. In Greenwood v NWF Retail Ltd UKEAT/0409/09/JOJ it was noted that if a party had to infer its evidence had been rejected it would not know why it had been rejected. The EAT held this would be a good indication that a judgment does not comply with r 30(6).

40. The Tribunal’s finding that “Mr. Steele’s investigation and decision rationale was thorough” also applied to his conclusion that he found no evidence the appellant had been dismissed for maintaining BBC Values. Mr Steele was intensively cross-examined about the Values but this is not reflected. The appellant must again infer the evidence was considered and rejected.  But clearly Mr Steele could only have approached such an investigation from the perspective that the BBC Values are a mission statement and therefore excluded conflicts over the discharge of the BBC’s public purposes.

41. The reasons given in the appellant’s notice of dismissal include charges that he forwarded press releases – about the London Film Festival and the World Cup – to colleagues ( p 338, paragraph 4; p 339, paragraph 1) and failed to attend a training session a month after he was dismissed (p 339, paragraph 4). These reasons are patently ridiculous. All journalists at the BBC pass on press releases that would be of interest to colleagues from time to time. The respondent accepted that if the appellant had simply ignored the press releases there would not have been any complaint. The second charge speaks for itself. Mr Mike Curtis said concerns about the appellant’s performance had been raised at board level in 2005 (p 320, paragraph 5). This would justify a refusal to short list the appellant for a post but remarkably it is not argued (p 113, paragraph 7.10). Nor on the finding of the Tribunal (p 120, paragraph 7.29) was the appellant informed about these performance concerns until July 2007.  Evidence of this nature – relevant to whether the respondent genuinely believed the appellant was incompetent– was ignored. The appellant submits that both r 30(6) and the common law require the Tribunal to explain why witness evidence on a material issue is rejected.

42. The following authority was cited.

Roberts v Carlin UKEAT/0183/09/DA (see above).

Greenwood v NWF Retail Ltd UKEAT/0409/09/JOJ at paragraphs 69 and 71.

If a party had to infer its evidence was rejected it would not know why. The need to make such an inference is a good indication that the judgment does not comply with r 30(6) and is not adequately reasoned. A tribunal should not see r 30 (6) as a straitjacket. But a judgment which neither articulates the issues as fully as the rule requires nor sets out the facts relating to those issues adequately nor explains its reasons for reaching the conclusions adequately may be inadequately reasoned to the extent that it is erroneous in law (paragraphs 69 and 71).

The tribunal erred in finding the claims of discrimination and harassment were misconceived from the start.

43. Justice Langstaff says the appellant “brought a claim when he should have realized he could never establish it (p 65).” In awarding the respondent costs the Tribunal concluded (p 73, paragraph 15) that the bringing of the direct discrimination and harassment claims was misconceived from the start. It says EJ Hughes in her Pre-Hearing Review judgment specifically commented that the critical issue of whether the respondent had knowledge of the appellant’s belief was still to be decided. There is no record in the judgment of such a comment. The Tribunal also says (p 74, paragraph 16) there was “no evidence at all before us to suggest that any of the 11 people who the claimant had accused of discrimination had any knowledge that he held a belief in the higher purpose of public broadcasting” and this would have been an essential prerequisite for his claim to succeed.

44. The appellant’s case of discrimination was based on the fact that that all BBC employees and especially journalists must adhere conscientiously to the BBC Values which promote its higher purpose. His submission was that his managers had breached the Values and discriminated against him for voicing concern. He believed he would be able to prove this in cross-examination. His view was based on the BBC’s clear pronouncements about what its Values represent, the public statements of Director Generals about the BBC, its Values and purpose and the appellant’s experience in applying the BBC’s editorial values practically for more than 20 years. EJ Hughes (p331, paragraph 17) said the appellant “was right to point to the statements made by the present Director General of the BBC (Mark Thompson) and by Lord Reith as to the purpose of public broadcasting…” Before Mr Thompson, Director General Greg Dyke said much the same; that public service broadcasting is special and that BBC staff really believe in the organisation, its aims and ideals. The appellant brought his claim confident of what the Director Generals of the BBC said about its higher purpose and invited him to believe.
45. The appellant would not have brought his case if the BBC Values are merely “a mission statement incorporating (the following) behavioural characteristics (p156).” He brought his case because the BBC, to discharge its higher purpose, insists staff adhere to and apply the BBC Values. EJ Hughes found the BBC’s aims and values expressed an underlying philosophical belief in the higher purpose of public service broadcasting in a democratic society. Moreover as noted the appellant could not have been aware until the respondent’s Final Skeleton Argument became available that the respondent was asserting its Values are a mission statement. The BBC says that its Values (together with its mission and vision) promote its public purposes. The appellant submits – even if the Tribunal rejects the BBC’s understanding of its Values – the appellant acted reasonably in pursuing his claims of harassment and discrimination on the basis of what he was taught about the Values at the BBC and had every reason to believe. The appellant submits the direction given in Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255)  holds. “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.”

The Tribunal erred in regarding the respondent’s “cost warning” letters as an aggravating factor.

46. The Honourable Justice Langstaff says the bringing of a claim the appellant could not establish “was compounded by written warnings in advance of the hearing (p 65).” The Tribunal notes (p 68, paragraph 2) that the respondent had warned the appellant that he could not bring a claim as his belief was only truly established at the Pre-Hearing Review in February 2011. The respondent argued that until then it could not have been aware of the appellant’s belief.  As the BBC encourages a belief in its higher purpose – not least through adherence to its Values – there was little reason for the appellant to take this claim seriously. It simply supported his view that managers interpreted the Values opportunistically. Moreover EJ Hughes had ruled the appellant could proceed with his complaints to a Full Hearing noting ( p 332, paragraph 19) “the real battleground is whether there has been less favourable treatment and, if so whether it was on grounds of the belief relied on.” The contradictory witness statements of the respondent strengthened a view that such a battle could be won. The warning letters did not say the respondent would claim the BBC Values are a mission statement. The Tribunal did not find the appellant had expressly and deliberately lied as alleged by the respondent (p77, paragraph 22). Whether the appellant acted reasonably in refusing to accept the offers must be considered in this context. A failure to accept an offer not to pursue a party for costs does not itself constitute unreasonable action in bringing or pursuing the proceedings. Parties frequently make threats of costs applications prior to hearings and Employment Tribunals frequently find the totality of the evidence from one side preferable to that from the other side, without it triggering a costs order. The question is whether a party had an arguable case even if it was ultimately unsuccessful. Lake v Arco Grating (UK) Ltd UKEAT/0511/04 (at paragraphs 12-14.)

47. The Values guide editorial decisions and conduct in accordance with the BBC’s higher purpose. Bereft of purpose the Values cannot be applied meaningfully. Editorial and ethical judgments become arbitrary or are influenced by considerations in conflict with the values, not least ratings. In his submissions, relying on Professor Georgina Born’s authoritative study of the BBC for support, the appellant argued there are tensions between a new management model and an embedded BBC ethos. Managerial whim often trumps the Values. The Lord Chancellor and the law are dismissed as boring (p 116, paragraph 7.19) and the abuse of guests – a cardinal sin at the BBC – is excused (p 140, paragraph 7.84; pp 342-344). Serious breaches of the Values by the respondent emerge as performance complaints against the appellant.

48. The respondent’s representative claims that the BBC Values are no more than a mission statement. The respondent witnesses effectively deny the Values exist to promote the BBC’s higher purpose. The appellant submits that by misrepresenting the Values – consciously or through ignorance – the respondent simply supports the appellant’s contention that he faced discrimination for defending the BBC Values.

49.The finding that the BBC Values are a mission statement unrelated to the BBC’s higher purpose, and not a philosophical belief, was based on a single non-sequitur, unsupported by any witness evidence or expert testimony, in dispute with the appellant’s unchallenged assertion that the Values enshrine the corporation’s higher purpose and untested against the criteria in Nicholson. It conflicts with the judgment of EJ Hughes who found that the aims and values of the BBC arise from “a shared belief in the importance of public service broadcasting in a democratic society.” The BBC itself rejects the finding. It continues to publicly promote the Values as sacrosanct. The appellant submits that the points of law raised are strong grounds for granting leave to appeal

[1] “Making It Happen,” Creativity, and Audiences: A BBC Case Study: Susan Spindler and Caroline Van Den Brul – NHK Broadcasting Studies 2006-2007 No.5
[2] Speech given to the British Property Federation Conference; Newport, South Wales, 27 January 2003.