Maistry v British Broadcasting Corporation

A discrimination claim based on a protected philosophical belief requires evidence that the relevant decision-maker knew of the belief and was materially influenced by it. A general assumption that employees share an organisation’s stated values does not establish that knowledge. Whether a decision-maker knew of the belief is a question of fact, and an appellate challenge requires showing that the finding was not open on the evidence. References to organisational values assist only if they conveyed the protected belief. A tribunal may also regard proceedings as misconceived where they rest on a fundamental misunderstanding of what must be proved, and may treat disregard of costs warnings as relevant to costs.

The appellant, a journalist formerly employed by the BBC, brought Employment Tribunal claims alleging discrimination and harassment on grounds of age and philosophical belief, together with unfair dismissal. He relied on a belief in the higher purpose of public service broadcasting and referred in the proceedings to BBC values. The Employment Tribunal rejected the claims and later ordered him to pay £10,000 in costs. Lady Stacey, sitting in the Employment Appeal Tribunal, summarily rejected appeals under rule 3(10) of the Employment Appeal Tribunal Rules 1993. The appellant renewed his application for permission to appeal, challenging the findings about the decision-makers’ knowledge and motivation and the costs order.

1. Permission refused. The Employment Tribunal’s findings provided no reasonable prospect of a successful appeal.
2. In a discrimination claim, liability depends on what motivated the individual responsible for the impugned act. If that individual was unaware that the claimant held the protected philosophical belief, the belief could not have influenced the individual’s mind. The employer could not be liable on that basis. Knowledge was a question of fact, and the finding could be challenged only if it was not open to the Tribunal on the evidence. That was a particularly high hurdle where the relevant witnesses had not been cross-examined.
3. A generalised assumption that senior management employees subscribed to BBC values could not be equated with knowledge that a particular employee held a philosophical belief in those values. The earlier finding that the appellant personally held a protected belief was based on his own evidence and life experience. It did not establish that subscribing to the same values constituted a philosophical belief in every case.
4. References to BBC values were material only if they conveyed to the relevant individuals that the appellant held the protected belief. Even then, he had to show that the treatment occurred because, or at least partly because, he held that belief. A disagreement about whether conduct was consistent with BBC values was not, without more, action because the employee subscribed to those values. The Tribunal found that no such belief had been articulated and that the complaints concerned specific disputes about editorial judgment and related matters.
5. The same conclusions made it open to the Tribunal to regard the discrimination claims as misconceived because they rested on a fundamental misunderstanding of what had to be proved. It was also open to it to treat the appellant’s disregard of costs warnings as a relevant consideration in awarding costs.

1. Employment Tribunal: dismissed the claims of age and philosophical-belief discrimination, harassment and unfair dismissal on 4 April 2012, and awarded £10,000 costs on 21 August 2012.
2. Employment Appeal Tribunal: Lady Stacey summarily rejected the two appeals under rule 3(10) of the Employment Appeal Tribunal Rules 1993.
3. Court of Appeal (Civil Division): refused the renewed application for permission to appeal.