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.
-->
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
UPDATE
