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.
