Will Brent’s decision to appeal against the Rosemarie Clarke Employment Tribunal judgement be scrutinised? (… or will the attempted cover-up continue?)

This Guest Blog by Philip Grant raises further questions over the lack of scrutiny in Brent as well as the power waged by members of the Corporate Management Team.

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Most readers of Wembley Matters will be aware of the Employment Tribunal decision against Brent Council and its Director of Human Resources, Cara Davani. On 4 September, the Tribunal found that Brent’s former Head of Learning and Development, Rosemarie Clarke, had been constructively dismissed by the Council, and had suffered victimisation and racial discrimination at its hands. 

Given these findings, and the strong evidence set out in the detailed judgement to back them up, any reasonable person would think that the Council should be quick to apologise to Rosemarie for the harm done to her by Cara Davani, and by the other officers, up to and including its interim Chief Executive, Christine Gilbert, who the Tribunal found had failed to protect her from this victimisation, as its procedures required that they should. However, on 26 September the Council issued a statement, saying among other things:

‘Following independent legal advice, we have decided to appeal as there appear to be legal errors in the Tribunal’s reasoning, in particular on the direct race discrimination and victimisation aspects of the judgement.’

I wrote straight away to the Council Leader, Cllr. Muhammed Butt to remind him that any appeal against the tribunal's decision could only be made on points of law. The facts found by the tribunal, based on clear and detailed evidence, could not be overturned by an appeal. The racial discrimination finding turned on whether Brent could show a valid reason why their treatment of Ms Clarke, by continuing action against her for alleged misconduct after she had ceased to be an employee of the Council, was different from that of a white male employee in the same situation. Brent completely failed to do that, which was why the tribunal was correct in law on that point.

I drew Cllr. Butt’s attention to paragraph 240 of the tribunal judgement, which recorded Brent’s (scarcely credible) evidence on who had made the crucial decision which led to the racial discrimination finding:

‘With regards to the decision being taken to pursue disciplinary action against the claimant [Ms Clarke], 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 also recorded that, despite claiming not to know who had made such an important decision, Brent’s most senior legal officer, Fiona Ledden, had chaired the meeting on 31 July 2013 which implemented that decision, and found Rosemarie Clarke “guilty” of gross misconduct in her absence. I put it to the Council Leader that Brent did not need to appeal against the Employment Tribunal judgement in order to clear its name of the finding of racial discrimination. It simply needed to tell the truth over the real reason why that decision to continue disciplinary proceedings was taken, and ensure that the Council Officers who had mistreated Rosemarie, and had tried to cover-up this wrongdoing at the tribunal, faced the consequences of their actions. 

I have not received any reply from Cllr. Butt on this matter. As it appeared that he was not prepared to take any action to stop the Council’s appeal from going ahead, I wrote to the Chairman of Brent Council’s Scrutiny Committee, Cllr. Aslam Choudry, with copies to the other committee members, on 8 October, asking that committee to consider urgently scrutinising the decision to appeal against this Employment Tribunal judgement. I set out the main facts and findings of the judgement, and gave my reasons why I believed ‘that the decision has not been made in the best interests of Brent Council, but in the interests of certain Council Officers who wish to see their own actions, or those of their associates, covered up, and their own positions and reputations protected.’

The Council statement on 26 September had only said ‘we have decided to appeal’, and in order to establish who exactly had taken that decision, and on whose advice, I had submitted a Freedom of Information Act request on 30 September. The response I received to this, from an interim Senior Employment lawyer in Ms Ledden’s department, was: ‘In our opinion all of the information and documents requested are covered by legal privilege.’ I challenged this ruling, as it is ridiculous to claim that the identity of the person who decided to appeal is covered by ‘legal privilege’. The matter is now the subject of an Internal Review, with a decision due to be given, by another lawyer in Ms Ledden’s department, in November.

Although two members of Brent’s Scrutiny Committee acknowledged receipt of my email of 8 October straight away, Cllr. Choudry did not reply until 22 October, and then only to say that he was seeking further information from Cllr. Pavey, and seeking a meeting with Cllr. Butt to discuss the matter, and that he hoped to respond to the request to scrutinise the appeal decision by the end of the week. When he had not replied, I wrote to ask him to list my request on the agenda for the Scrutiny Committee meeting on 3 November. That agenda was posted on the Council’s website soon afterwards, without this item on it. On 25 October I wrote again to Cllr. Choudry, with copies to other members of the Scrutiny Committee, asking that one of them should give notice to the designated Council officer that they wished to add ‘a request received from a member of the public to scrutinise Brent's decision to appeal against a recent Employment Tribunal judgement’ as any item of ‘any other urgent business’ on the agenda for their meeting on 3 November.

Cllr.Choudry replied on Monday 27 October, saying that he had carefully noted my comments, and:

‘I have also taken advice from Council Solicitors - Fiona Leddon and, she has advised me with following response: 

"Dear Councillor , Further to our discussion earlier today I can confirm as I stated to you that the function of call in to support scrutiny is in relation to Executive decisions. The Executive function is taken by the Cabinet, the decision in relation to an appeal of an Employment Tribunal case is Not a member but an Officer decision." ’

As a result of this advice, Cllr. Choudry said that he would not be putting this matter on the Scrutiny Committee’s agenda. I replied later that day, saying:

‘In normal circumstances, I would accept the view that you have set out, but these are exceptional circumstances, and I would ask you to reconsider this matter for two very good reasons:

1.     I believe that the advice you have been given by Ms Ledden, as quoted to me in your email, is incorrect.

2.     Ms Ledden has a conflict of interests in this matter, as she is likely to have made, or to have been involved in advising on, the decision which I have requested should be scrutinised by your Committee, and she may well have personal reasons for wishing the Employment Tribunal decision to be kept "sub judice" as a result of the appeal against it.’

Although Ms Ledden’s advice did not say outright that Scrutiny Committee can only scrutinise decisions of the Cabinet, and cannot scrutinise decisions made by Council Officers, it gave that impression very strongly. I was able to show, by reference to Brent's Constitution, that among the functions that the ‘Scrutiny Committee shall perform’ (under its terms of reference at Part 5) are:

‘3. To review or scrutinise decisions made, or other action taken, in connection with the discharge of any functions which are not the responsibility of the executive and to make reports or recommendations to the Council or the Cabinet in respect of such matters.'

I have given notice under Standing Order 69 that I wish to speak as a Deputation at the Scrutiny Committee meeting on 3 November about my request that they should urgently scrutinise Brent’s decision to appeal against the Employment Tribunal judgement. I have also again asked Cllr. Choudry, or any other member of the Scrutiny Committee, to give notice under Standing Order 64 that my request should be treated as ‘any other urgent business’ at that meeting, which can be done at any time prior to the commencement of the meeting on Monday. 

I will attend the Scrutiny Committee meeting (Monday 3 November at 7pm, at Brent Civic Centre) ready to speak, but I have yet to hear back from Cllr. Choudry whether I will be allowed to do so. I believe that the decision, in the name of Brent Council, to appeal against the Employment Tribunal judgement in the Rosemarie Clarke case is a bad decision, and that it should be properly scrutinised, particularly as it is likely to have been made by, or strongly influenced by, people involved in, and culpable in, the actions which gave rise to that judgement. If anyone else who feels the same is able to attend, I would welcome their moral support, although it is uncertain whether my views, and theirs, will get a hearing.

Philip Grant