With Philip Grant's permission, I am re-posting comments which he has made on the Kilburn Times website, in response to Brent's decision to appeal against the employment tribunal judgement. LINK
Comments made by Philip Grant in response to the online Brent & Kilburn Times story about Brent’s appeal against the employment tribunal appeal decision:
1. I agree that Brent Council should not be appealing against the Employment Tribunal judgement. An appeal can only be taken on points of law, and cannot overturn the tribunal’s findings of fact, unless no reasonable person could have made those findings on the basis of the evidence before them. The tribunal had very clear evidence, which it set out fully in the judgement, to show that Rosemarie Clarke was victimised by Cara Davani, as a direct result of having made a formal complaint about being bullied by her, and that other senior officers in the Council did not do what they should have done to protect Rosemarie from that bullying and victimisation.
Even if Brent was to win an appeal, on some legal technicality, against being found guilty of “racial discrimination” as an aggravating feature in its victimisation of a former employee (who for years had played a key part in raising Brent’s status as an “Investor in People”), that victimisation remains a proven fact. By appealing against the tribunal judgement, rather than taking Ms Davani’s actions of ‘victimisation, harassment or bullying extremely seriously’ as it claims it does with all such allegations in its statement, Brent Council is continuing its victimisation of Rosemarie Clarke.
The Council thinks that its deep pockets will allow it to pay the fees of top barristers to present its appeal, and make no mistake, we are talking of fees and costs well into six figures here. But the money in those ‘deep pockets’ is your money and mine, from Council Tax and Income Tax, every pound of which is needed to provide services for people in Brent. It should certainly not be spent on trying to cover up the actions and protect the reputation of Brent’s Director of Human Resources, Cara Davani.
2. This may seem strange, coming from someone who has criticised Brent’s handling of the Rosemarie Clarke employment tribunal case, but it is possible that her victimisation by senior Brent Council officers was not a result of racial discrimination. If that is the case, why does the tribunal judgement, at para.313, say: ‘The tribunal finds that the claimant has suffered discrimination on the protected characteristic of race, victimisation and was constructively dismissed’?
Evidence showed that a senior white male employee, who had been suspended by Brent for alleged gross misconduct in 2012, had the disciplinary proceedings against him dropped after he resigned. Rosemarie, a black female employee, had resigned in April 2013 after being suspended by Brent at the end of February, but the Council carried on with the disciplinary proceedings, finding her guilty (in her absence, and after she had left their employment) of gross misconduct on 31 July 2013. As it had been proved to the tribunal that there was a distinction between the Brent’s treatment of the two comparable cases, it was then up to the Council to show a valid reason for the difference.
Brent could not show a valid reason for the difference. Brent gave ‘an account as to why disciplinary action was not pursued against Mr H after his resignation, being as to his professional relationship with [an] accountancy body, having implications on his ability to work in the future’. The tribunal said that ‘this does not account for the reason why action was continued against [Ms Clarke] so as to offer an explanation showing that race was not in issue, the continuation and conclusion of disciplinary action having similar employment consequences for both parties.’ In these circumstances, the tribunal found that Rosemarie ‘was less favourably treated because of her race …’ to be ‘… proved on the failure of [Brent Council] to show that race was not a consideration.’ (Paras. 249 and 250 of the judgement).
Brent Council has been “found guilty” of racial discrimination in this case, and wants to clear its name. If race did not play a part in the decision to continue disciplinary action against Rosemarie Clarke after she had resigned, what was the reason for the decision, and who made it? Here is what the tribunal judgement says at para. 240:
‘With regards to the decision being taken to pursue disciplinary action against the claimant, following the termination of her employment, the respondents [Brent Council and Cara Davani] have been unable to state by whom or when that decision was made. Indeed, by the evidence before the tribunal a decision was taken following a meeting between Ms Cleary [a Brent HR Manager] and Ms Ledden [Brent’s Legal Director]. In her oral evidence, Ms Ledden confirmed that Ms Cleary’s role at the meeting was an advisory one only, but also that she, Ms Ledden, had not made the decision either. Ms Ledden could not identify who had made the decision.’
The tribunal clearly found the evidence reported here scarcely credible, as any reasonable person would. Despite claiming not to know who had made such an important decision, Brent’s most senior legal officer chaired the meeting on 31 July 2013 which implemented that decision, and found Rosemarie “guilty” of gross misconduct. What was the “misconduct” which she had been suspended for? The letter to her on 26 February 2013, supposedly written by the Director of her department, but emailed to her by Cara Davani, said: ‘It has been alleged that you maybe liable for gross misconduct in respect of your failure to follow reasonable management instructions.’ The ‘instructions’ had been given by Ms Davani, who Ms Clarke had lodged a formal complaint against for bullying, and the tribunal found that they had not been ‘reasonable’.
So, what was the reason why Brent Council victimised Rosemarie Clarke? I don’t know Ms Clarke, and was not involved in any of what happened at the Council over this matter at the time, but based on the very detailed evidence set out in the Employment Tribunal judgement this is my opinion.
· The primary reason appears to be the personal animosity of Cara Davani, after Rosemarie Clarke had the courage to complain in December 2012 about the bullying and harassment she felt she was receiving from her line manager.
· Rather than protecting Rosemarie in this situation, as Brent’s HR procedures set out that they should, other Senior Officers at the Council (up to, and including, the Chief Executive) did not follow those procedures, and allowed Cara Davani to continue her victimisation.
· When, in June 2013, Rosemarie made a claim against Brent Council to the Employment Tribunal, Ms Davani and the other officers involved (probably including Brent’s Senior Employment Lawyer, who, it appears, is also Ms Davani’s partner) were determined to do all they could to undermine that claim.
· One way they saw of doing this was to carry on with the “gross misconduct” proceedings, even after Rosemarie had left Brent’s employment, so that they could claim that she would have been sacked, even if she had not resigned.
· Alternatively, or in addition to this, the continuation of the disciplinary action was a result of Ms Davani’s personal wish to do as much damage as possible to Rosemarie’s future employment prospects, by ensuring that any “reference” she was given by Brent would say that she had been found guilty of gross misconduct during her employment with the Council.
If I am right, then Brent Council would do better to admit the real reason, and make clear that it was not guilty of racial discrimination by taking strong and appropriate action against the Senior Officers who were responsible for Rosemarie’s victimisation, and by ensuring that Rosemarie is properly compensated for the harm she has suffered at the hands of those Officers.