Deny. Deny. Deny.

When organisations get into trouble there are four levels of denial they typically engage in:

1. “One or two rotten apples”

The comforter of first resort, carefully overlooking the undeniable – if inconvenient – fact that it only takes one rotten apple to infect the rest. This is repeated each time there’s wrongdoing until, eventually, the organization realises – or is forced to realise – that the whole damn orchard is rotten. It finally does what it should have done years previously: starts to clean up the mess, this now taking far more effort and money than it might otherwise. 

Alas, the harm caused to an organisation’s reputation by insouciant foot-dragging means it will take a long time before it is given credit for any improvement. See the City of London which needed a financial crisis, humungous fines and remediation costs, its chief executives before a Parliamentary Commission and an excoriating report before it realised its problems were widespread, systemic and cultural rather than an unfortunate series of unconnected events.

Two changes in particular were needed:

(1) removing the conflicts of interest caused by the misalignment between what financial companies were legally required to do and the incentives created by how employees were rewarded; 

and 

(2) the realisation that fines could not be seen as merely the cost of doing business. 

Those changes only happened because of determined external pressure by key regulatory and other stakeholders.

2. “The two-fingered salute”

It is generally a good idea, when facing severe criticism from an inquiry, to concede with as much good grace as possible, keep your immediate thoughts about the idiocy of the judge to yourself and not try to justify the criticised behaviour. No good will come of it: you will look like someone merely paying lip service to its findings. 

It is advice which the Metropolitan Police, for instance, has singularly failed to follow over the years. See, for instance, its response to the 2019 report by Sir Richard Henriques on its failings in Operation Midland: 43 of them – including that, in obtaining search warrants without being fully transparent about the evidence they had, the police had broken the law – about as serious a failure as it is possible to have by public servants whose primary and most important duty is to uphold it.  

On publication day, the Met’s response focused on why no senior officer had done anything wrong. The IOPC also adopted the same self-exculpatory tone to explain why no-one would be disciplined. Not content with this, the Met also indicated that it would disregard one of the report’s principal recommendations (about not stating that allegations were true before they had been thoroughly investigated). A similar approach was taken with the Daniel Morgan report. Little wonder that Dame Louise Casey had to recommend that the Met accept the findings of that report when she issued her own even more devastating report some 17 months later. Bizarrely, despite the Met Commissioner accepting the Casey Report, he still tried arguing the Met’s failings were not “institutional”. Given its contents, what a hill for him to choose to die on.

The inevitable consequence of this sort of response is that what usually starts out as a small problem persists and worsens. As can be seen in the numerous – largely ignored – reports over the years into police misconduct. Prior to the Casey Report, there had been at least 6 reports into similar misbehaviour dating back to 2012, largely forgotten and unimplemented (1). Is it any wonder Casey found what she did? Is it any surprise to learn that the Met has, according to its Commissioner, “well over” 500 officers on restricted duties with hundreds more needing the sack? (2)

3. “Passive aggression”

The next stage is simply to ignore the adverse findings altogether and spin something positive out of whatever straws can be found, make a dig at the wronged person and suggest the entity has only been criticised because it was trying to do the right thing. It – not the wronged claimant – is the real victim, good people who can’t have done anything wrong, precisely because they are “good” (in their own minds, anyway). (Here, “good” is a self-applied adjective untethered from the reality of the actions taken). It is increasingly used by charities and governmental organisations keen on promoting their “values”. Surprisingly, it is sometimes used in response to a court ruling.

You’d have thought, wouldn’t you, that, once a court has ruled that you have breached the law and ordered payment of damages, some humility, an apology to the person so wronged, a promise to do better in future, maybe even learn some lessons (however empty a cliche it sounds) would be the bare minimum. But no. 

Two recent examples:

1. The ruling by the Employment Tribunal that Arts Council England (“ACE”) had unlawfully harassed an employee, Denise Fahmy, in relation to the protected characteristic of religion or belief. The case related to Ms Fahmy’s gender critical beliefs, how ACE behaved in an internal meeting to discuss a grant (awarded then removed from LGB Alliance) and a subsequent internal petition. ACE’s response was to highlight the two claims which were dismissed, not make an apology to its former employee for harassing her nor any promise to revisit its internal policies, review its training or learn any lessons whatsoever. To read its response, you’d have thought it had done nothing wrong at all.

2. The final damages award in Maya Forstater’s long-standing case against her former employer, CGD. 

Two points are worth noting:

(a) The award of aggravated damages to reflect the public statements made by CGD following the decision in Ms Forstater’s favour. Those public statements mischaracterised what the tribunal had said, were “oppressive” and “high-handed” causing harm to Ms Forstater.

(b) CGD’s public response: no apology, no promise to learn any lessons or change its behaviour. Rather it stated that it would “continue to strive to maintain a workplace that is welcoming, safe and inclusive to all”. 

Some chutzpah saying that just after it had been ordered to pay a significant sum for discriminating against an employee and deliberately making oppressive and harmful statements about her even to the extent of misleading people about what the court had said about her.

These responses display arrogance and contempt for the legal rulings and, impliedly, the law behind those rulings. It is the arrogance of those:

• thinking they should be praised for not treating their employees unlawfully, as if that isn’t the absolute minimum to be expected;
• thinking they can mislead about what a court has said;
• thinking they do not need to apologise for the harm they did to employees;
• who do not even pay lip service to the idea of learning any lessons or the need to show the public that they see the need to change their behaviour;
• not thinking about how this appears to existing or potential employees who may feel the same or about the need to show other employees that they will not mistreat them in the same way;
• thinking that paying damages is simply the cost of doing what they want to do rather than a signal to stop behaving in such a way. 

It is similar to the arrogance found in the world of finance before it was humbled: of those so convinced that they were either too big to fail or too important to the country’s tax revenues that they could do what they wanted and get away with it. It is the sort of arrogance which led Bob Diamond, Barclays CEO, to say in January 2011 that the time for apologies was over when, in truth, it had scarcely begun.

But it is also the arrogance bred by a self-righteous belief that they are the good guys and can, ipso facto, do no wrong. 

• In the police’s case, it comes from the belief that because policing is a critical public function, everything they do is therefore in the public interest and their behaviour and culture should not be challenged (it taking a grotesque rape and murder to start the process of change). 

• In Equality Act cases, it is comes from the belief that there is only one “protected characteristic” which matters, you can pick and choose which one you pay attention to or elevate, based on which one is currently fashionable or causes you the most aggravation, that there is in reality – if not in law – a hierarchy and not, as Audrey Ludwig, an expert equality lawyer, has pointed out, a delicate equality ecosystem in which the rights of all those covered by the Act need to be carefully considered. 

Learning lessons?

Ms Forstater has said that employers should learn from these damages awards. They should. But. Banks did not really learn from the many fines they paid long before their world went “splat” landing the public with the costs. Fines were a cost of doing business. That business was still profitable. Employees were still incentivised to behave in damaging ways. Banks said they valued X but they rewarded Y so Y is what they got. When an organisation’s culture is so skewed in this way, a fine or a damages award is not enough. 

What is needed is the removal of the conflict of interest and the skewed incentives coupled with pressure for real change from external stakeholders. There are multiple conflicts of interest evident in the equality sector:

• A lobby group (Stonewall) seeking to represent two protected groups, whose interests are not necessarily aligned) – lesbian/gays and transpeople;
• Also lobbying for legal changes removing existing legal rights (the right to single and separate sex spaces) from a third group (women) with a protected characteristic – sex (3);
• Organisations taking advice from those who are not qualified or expert in equality law;
• Organisations paying to earn points from lobby groups acting for only some groups covered by the Act. (See here (4) for the conflicts of interest this creates when organisations such as the police ally themselves with Stonewall.)

Until organisations stop outsourcing their thinking on equality matters to lobbyists rather than those who understand equality law, until they stop seeking to impress lobbyists who are using them to create a reality consistent with how they want the law to be not the law as it is, little will change. Those conflicts of interest will continue to create problems. Hard questions should be asked of organisations doing this given the risk they run of breaching equality laws.

Those Ministers responsible for taxpayer funded bodies such as ACE also have levers. When such bodies lose cases they should be asking: 

• What steps are they taking to avoid a repetition? 
• By when? 
• Who is responsible? 
• How will this be assessed? 
• What training is being given? By whom?
• What legal advice is being obtained? From whom?
• How are actual or potential conflicts of interest and perceptions of bias being removed or mitigated? 

These and others are questions which ACE, CDG and many others should be asking themselves. If they don’t, those who own and fund them should. It is their money, after all, which is being spent on losing legal cases and damages awards.

4. “I see no ships”

Claiming that a court judgment does not mean what it says is the next stage. The most recent example of this sort of denial has been evident in the responses to the judgment in the Mermaids and The Charity Commission / LGB Alliance case. Mermaids sought to have the LGB Alliance’s charitable status removed. In order to succeed it needed to establish that it had the standing to challenge the Charity Commission’s decision and, if successful, show that the LGB Alliance’s purposes were not charitable. It failed on the first point. (Even though the second was fully argued, the Tribunal did not decide it – nor need to.) No ruling was made on this point, a fact which is being ignored in some of the self-serving reactions by those disappointed by this outcome.

The issue of standing May appear technical one but is, in reality, fundamental. Mermaids failed to establish that it was in any sense affected by the decision to register LGB Alliance. The reasons why it failed to establish this are worth exploring in more depth separately since they go to the heart of what a pluralist society entails – the acceptance of criticism and that others are entitled to have different views to your own. 

The response of Mermaids and their lawyers, the Good Law Project, has been to:

• Ignore the reasons why they lost;
• Airily dismiss this as merely “technical” (which pretty much describes all legal judgments);
• Wrongly claim that they lost because the law was “so complex” when in reality it was because they were unable to meet the legal test on the facts; and 
• Focus on some minor obiter dicta criticisms of LGB Alliance. 

The former Mermaids CEO also claimed the LGB Alliance did not win. This is a complete inversion of the truth. Mermaids sought to challenge the Charity Commission’s decision to register LGB Alliance as a charity and remove its charitable status. They achieved neither of these aims. LGB Alliance retains its charitable status. If this is it losing, one wonders what a win would look like. 

The absurd culmination of this “Nelsonian” approach to the judgment has been the claim that, if they had only won the standing point, they would have won the case. “If I had won I would not have lost” is true but a bizarre response to a case which you have lost, especially since there appears to be no engagement with the reasons why and what this means for themselves and others.

It is a childishly silly response. Foolish too because the decision is a victory for pluralism in the charity sector, a pluralism which protects charities like Mermaids from vexatious attacks just as much as it does those they disagree with. It is a win for them too. More fools them for not realising it. 

Does this matter?

Yes.

There is something worrying – and dangerous – about this deliberate misconstruction of a court judgment. As well as a finding on the issues before it, judgments are a signal both to the parties involved and to others to reflect on what it says and, as necessary, change their behaviour. Ignoring and deliberately mischaracterising what a judgment says – whether it is done because you don’t like or disagree with it or to save face or because you don’t understand it – is fundamentally contemptuous of the court and the rule of law. Those who do it are essentially saying that they know better than the court. It might – (just about, if feeling very generous indeed) – be forgivable in non-lawyers. It most certainly is not when done by lawyers, especially ones proclaiming their goodness in their name. 

It is a Trumpian approach, both to facts and the rule of law. It is a dangerous development in what is meant to be a democratic, pluralist country based on the rule of law. We have to hope that it does not become widespread.

Notes

(1) See the reports set out in this article in November 2022 – No Sh*t, Sherlock!

(2) I have written here – Unhappy Valley — March 2023 about the Casey report and what the Met needs to do now. All the articles I have written on police failings and culture can be found in the notes to this article – The Price of Indifference.

(3) Since writing this Stonewall has stated that they are no longer seeking the removal of single sex exceptions from the Equality Act. They have not clarified whether they are still seeking the replacement of “sex” in the Act with “gender“, which would have the same effect as the removal of the single sex exceptions.

(4) Conflicts of Interest – December 2022

Photo by Dendy Darma Satyazi on Unsplash