From: devan maistry
To: Sue Harris
Sent: Thursday, April 29, 2010 11:56 PM
Subject: Fw: Capability Procedure
Thanks so much for trying to help. This response is swiftly written as I think the issue is quite straightforward. Management has of course complicated matters – cynically, opportunistically and unnecessarily – and will continue to do so if we don’t stand up to the bullying. I have embedded my comments in bold.
From: Sue Harris
Sent: Thursday, April 29, 2010 6:53 PM
Subject: Capability Procedure
Thank you for your email of 19 April in which you have asked for my view of your situation. I believe that there a two key issues that need to be addressed in respect of your concerns about how the Capability process is being managed in relation to yourself.
First is the matter of procedure – whether or not the BBC is in breach of it and if so, the consequences: The application of any procedure is always a matter of interpretation and it is not uncommon for individuals to take different views. Even if we were to be able to assemble and consult with the original negotiators of the joint unions’ (aka NUJ, BECTU and Unite) capability agreement with the BBC there would probably be many different views on precisely how the process should be applied and run.
You suggest that breaches of the agreement are entirely a matter of individual perspective and it is not possible for the union to form a view. Keith’s perception however influences his advocacy and cannot be dismissed as just personal opinion. I believe that the union agreement is being seriously flouted and have explained why I hold that view. Keith needs to address my arguments.
I know that you strongly believe that the BBC is applying the process incorrectly and to date you have been quite rightly voicing your objections about this throughout the process. You have also been ensuring that your objections are being logged in writing, so that there is evidence of this. However, as long as your capability process remains an internal matter, while you and we (on your behalf) may seek to influence how the BBC applies and operates the process, it will be BBC management who ultimately decide how it is run. As you know this has already been demonstrated in the BBC’s rejection of your grievance appeal.
It is difficult to see how the union can influence a process on which it cannot have a view.
It is only if the matter becomes an external issue and is taken to an Employment Tribunal that a third and independent party will consider and take into account whether or not procedure has been properly interpreted and fairly applied.
How will this issue be raised if we cannot tell when the agreement is being breached?
However the Employment Tribunal’s consideration of procedure will be as an adjunct to the second and substantive issue of your performance and whether or not, irrespective of procedure being properly applied, the BBC has just cause for complaint. The Employment Tribunal will take proper application of procedure into account, only as far as it hampered the proper judgement of the second and substantive issue.
And again: How will the tribunal recognise ‘proper application’ when by all accounts this is impossible to identify?
The second issue is the substantive matter of the BBC’s criticism (either rightly or wrongly) of your performance: Keith’s concern has been that while objecting to the application of procedure you have not been addressing the critical matter of the BBC’s criticisms of your performance. It is imperative that you do this, either by putting forward hard fact evidence that the BBC assertions about your performance are incorrect or by heeding the complaints and striving to demonstrate that you are capable of performing in the manner required and to the satisfaction of your BBC managers.
From the outset Michele Paduanao and I have argued that there are no performance issues. Michele asked management to identify the performance issues and Graham Poole and Jonathan Aspinwall were unable to do so. At a meeting on 15 September 2009 Keith was told by Neila Butt that there were no performance issues. Sue Harris had to tell Kevin Silverton on 1 March this year that performance issues needed to be identified to start capability proceedings. Keith must show how I have failed to address the BBC’s criticisms. He should also make it clear why he is not satisfied with the evidence I have presented. For instance at the last hearing management alleged that I had performed badly on 6 October 2009. I argued that this could not be true as Keith and I had been in London meeting with Jeremy on that day. Many other allegations were challenged in similar fashion. It is imperative that Keith prove his case or strive to demonstrate why he has taken such a negative view of my participation in a clearly vindictive process.
If you feel that the criticisms of your performance lack clarity, you should request any specifics you consider may have been lacking, or should be provided so that you have a proper opportunity to state your case. You need to be in a position at an external hearing to show that your performance, with examples, is up to standard.
Management has been asked to name specific performance issues since April 2008. In November last year, following the implementation of an informal work plan, management for the first time specified various performance failures. Although this was done to justify formal proceedings Kevin Silverton felt it was not appropriate or reasonable to consider my response to these allegations. Keith has said nothing about this shocking abuse of process.
You also need to appreciate that if you are dismissed and wish to apply to an Employment Tribunal, then the Tribunal will not generally go into the minute detail of your performance. The Tribunal’s remit is not to say “we would not have done, or considered the situation in that way” and impose its own way of doing things and viewing standards. Its remit is to consider if a reasonable investigation has taken place, whether you were given reasonable opportunities to state your case and/or improve your performance to the BBC’s satisfaction, and a reasonable decision has been reached, one that is within a reasonable range of management responses. That a Tribunal may have a different view of that of management would not in itself be sufficient to find a dismissal unfair. You should therefore make every effort to avoid being dismissed, even if you disagree with the view that the BBC have of your performance or the way that they are choosing to apply the procedure.
An NUJ lawyer has already advised that ‘ case-hardened judges are not interested in the facts.’ I find this remarkable. There is of course a difference between extraneous and irrelevant detail and the facts that support a claim. The test for reasonableness does admittedly operate from a management perspective but the responses must still be reasonable. It is difficult to see how anybody could consider the Kevin Silverton response cited above as falling into a band of reasonable responses. Keith believes that the investigation into my performance has been fair, that I have been given a chance to state my case and there there have been genuine efforts to enhance performance. I have shown in detail why this is untrue. Keith needs to prove me wrong, or recant.
Should you be dismissed and wish to apply to an Employment Tribunal, you can apply for Legal Assistance from the union. However I need to remind you that as per the NUJ’s Legal Assistance Policy and Terms (encl.) there are various criteria to be taken into account by the Union in determining whether or not to provide Legal Assistance or to continue to do so, through to a Tribunal. This is not an automatic right that flows as an entitlement of union membership. In particular I would draw your attention to the need for the prospects of success to be reasonable.
As for the advice and support that Keith Murray has been giving you, I do not think it is necessary for you both to have to agree on the semantics of the application of the process. Keith has not prevented you from making your objections to the BBC. However I do believe that Keith has quite rightly been advising you that it is fundamentally critical that you also address the second matter of the criticisms of your performance. In that respect Keith has very properly been advising you as to the possible consequences of some of your actions. He is, and has just been trying to ensure that you are put in the best position to protect your employment. I hope you appreciate that this is for your benefit, so that you may be aware of the difficulties that you may face and take steps to minimise those difficulties at the earliest opportunity.
If the union is able to identify ‘semantics’ than it must be able to tell when more important issues are involved. I can only repeat that Keith needs to specify the performance issues he says I have been unable or unwilling to address and which support the criticisms made by the BBC and justify the initiation of a capability process. I think it would be extremely useful for Keith do this as soon as possible.
I hope that this is helpful and that the next meeting and stage of the procedure goes well for you.
Sue Harris National Broadcasting Organiser