'Misrepresentation' and the racial discrimination Judgment against Brent Council

Guest blog by Philip Grant. This is Philip's response to Muhammed Butt's statement  LINK on the Davani issue.

Dear Councillor Butt,

Your statement (to members of the Council?) about the Rosemarie Clarke Employment Tribunal case has been published on the "Wembley Matters" blog website, and I am writing to respond to some of the points you have made, as I suspect that I am one of the main sources of the alleged 'untruths' which you have referred to. You have said:

'Much has been written and said about the Employment Tribunal of Rosemarie Clarke and Brent Council; a good deal of it has been inaccurate and unfair.  The Council’s normal policy is not to comment on the detail of individual cases and for a considerable time we have held to this line. However, the time has come where the Council needs to set out the facts in the light of continued misrepresentation of the judgement.'

I have written to you about this case on a number of occasions since May 2014 (when it was reported in a local newspaper), and on 21 September 2014 I wrote to you saying:

'I can understand you not wishing to comment on this matter publicly when you had an election to win, and when the Employment Tribunal proceedings were still in progress, but now that the judgement has been made, and is in the public domain, you as Leader of the Council need to be seen to be taking the right action to deal with it.'

Sadly, having done nothing about the case for more than ten months (other than assisting senior officers in an attempted cover-up of the facts), it is you who is now trying to misrepresent the Judgment. 

As you may not have it readily available, I will remind you of what I wrote to you on 28 September 2014, referring to comments I had made on the "Brent & Kilburn Times" website under an article reporting that Brent had announced it would appeal against the judgement in the Rosemarie Clarke case, and giving advice on how the Council could, in practice, mitigate the finding of "racial discrimination" against it by not appealing, but by telling the truth instead:

‘Brent may have obtained 'independent legal advice', but who at Brent Council assessed that advice, and who are the 'we' who decided to appeal?

  

Presumably Fiona Ledden was involved, but her judgement on this is seriously compromised by the lack of credibility of the evidence she gave (on oath?) to the tribunal over who made the decision to continue with the disciplinary proceedings against Rosemarie Clarke after she had left Brent's employment, which is at the heart of the racial discrimination finding against the Council. If Andy Potts, Brent's Senior Employment Lawyer, was involved, he appears to have a conflict of interest, as Ms Davani's partner in their private lives. The barrister or QC who gave the advice may have pointed out some weaknesses in the tribunal's judgement, but would also have a vested interest in the matter because of the large fees they could earn if Brent did appeal.

 

As I have said in the second of my comments attached, any appeal against the tribunal's decision can only be made on points of law (or 'legal errors', as your statement puts it) - the facts have been found by the tribunal, based on clear and detailed evidence, and that evidence supports their findings that Rosemarie Clarke was victimised, by Ms Davani and by Brent as her employer. Once Ms Clarke had established, on good evidence, that she had been treated differently from Clive Heaphy, the legal onus was on Brent to show why the difference in treatment was a valid one, and Brent completely failed to do that. That was why, in the circumstances, the tribunal was correct, in law, to find that racial discrimination was a factor in the victimisation and constructive dismissal of Ms Clarke.

 

You will see, from my second comment that I don't believe that racial discrimination was the main reason (if a reason at all) for the victimisation. On the evidence, Rosemarie Clarke was victimised by Cara Davani because she had the courage to complain that she was being bullied by Ms Davani, and rather than giving her the proper protection required by its procedures, Brent allowed Ms Davani to play an increasingly vicious role against Ms Clarke. It is possible that Ms Davani genuinely thought that Ms Clarke was "playing the system" (there is no evidence on this), but even if she did, as Brent's top HR Officer she should have followed the rules, and not allowed her anger at Ms Clarke to override her professional responsibilities.

 

The problem for Brent got worse after Ms Clarke made her claim to the Employment Tribunal. It was decided to fight her claim by carrying on with disciplinary proceedings against Ms Clarke, in the hope that by finding her guilty of gross misconduct they could claim that if she had not resigned, she would have been dismissed anyway. That tactic backfired, especially after Brent could not (or would not) admit who had made that decision. I referred to para. 240 of the judgement in my email of 21 September, and have included the full text of it in my second comment attached. If Fiona Ledden did not make the decision herself, as she stated in her oral evidence, she would have known who it was made by. I suspect that it was probably made by either Cara Davani or Andy Potts, but Ms Ledden would have known that if she disclosed that to the tribunal the judgement would inevitably have gone against Brent Council. 

You have announced that Brent will appeal, but hopefully that appeal has not been submitted to the High Court yet. There is a way of "clearing Brent's name" over the racial discrimination issue without wasting hundreds of thousands of pounds of funds the Council cannot afford, and which it should be spending instead on meeting the needs of local people, rather than in trying to protect Cara Davani. The way is by giving the true reason for the victimisation, and I will explain how this could be achieved. 

... The "U turn" over the appeal can be achieved by either you, or Cllr. Pavey under his review, finding that on further examination of the facts, the real reason why Rosemarie Clarke was victimised was because of the personal actions of Ms Davani, and that no racial discrimination was involved at all. The finding of racial discrimination was a 'legal technicality', resulting from errors made in preparing Brent's case for the tribunal, and this and procedural errors by other senior council officers in dealing with Ms Clarke's complaints of bullying and harassment against her by Ms Davani will be dealt with as part of Cllr. Pavey's review. As part of the announcement that Brent will not now be appealing against the tribunal's decision, you will, of course, need to be able to say that Ms Davani has resigned with immediate effect (or that she has been suspended while her alleged misconduct in this case is dealt with) and that Brent Council will ensure that Rosemarie Clarke will receive full compensation as soon as possible.

I hope you will find this email constructive and helpful. Once again, I am trying to help Brent, and help you, to do the right thing. My interference may be annoying, but if you are genuine about the need to 'allow residents to hold the Council to account' (see my email of 9 September, to which I am still awaiting your reply), you and your colleagues do need to consider the views of independent minds in the local community, especially when they put forward potentially sensible alternatives to the "in house" advice you have received.’  

I suspect that the reason you have issued your statement now may be connected with my efforts to establish whether the rumours of a "pay off" by Brent to Cara Davani, on her leaving the Council at the end of June, are true: and in the growing interest among Brent councillors to establish the justification for any such "pay off", if the interim Chief Executive or Chief Legal Officer have to confirm that there was some form of "pay off". I am copying this email to your Cabinet colleagues, and will forward a copy to my Ward councillors and to members of Brent's Scrutiny Committee, for their information. 

Yours sincerely,

Philip Grant.

Philip Grant's letter to councillors on this issue LINK