Ryan Clement

Kelso and Stephen

Ryan Clement

Tragically, 65 years ago, on 17 May 1959 Mr Kelso Cochrane, an Antiguan living in Notting Hill, was fatally stabbed. Despite the obvious concerns by some sectors there still appeared to exist at the time a degree of caution amongst politicians as to whether legislation prohibiting racial discrimination would be effective. I remind you that the first Race Relations Act was in 1965.

On 4 June 1959, Mr Fisher MP asked, “whether, in view of the recent murder of a West Indian in the streets of Notting Hill and of attacks upon the property of [black] residents in that area, he will issue a public statement deploring such manifestations of colour prejudice and violence…”

The Secretary of State for the Home Department and Lord Privy Seal (Mr R.A. Butler) stated, “Racial discrimination has no place in our law and responsible opinion everywhere will unhesitatingly condemn any attempt to forment it.”

The tragic death of Mr Cochrane in 1959 was reported and led only to a few questions being raised in Parliament. Thirty-four years later the tragic death of Stephen Lawrence led not only to mass public outcry but on 31 July 1997 to the commissioning of a report headed by Sir William Macpherson of Cluny. The Macpherson Inquiry looked into matters arising from the death of Stephen, in order particularly to identify the lessons to be learned for the investigation and prosecution of racially motivated crimes.

Some were surprised when the then Home Secretary, Mr Jack Straw, indicated that he would adopt Recommendation 11 in its entirety, covering not only the police, but also other public authorities such as the civil service and the immigration service.

On 15 February 1999 the Macpherson report was delivered to the Home Secretary, among other things, making 70 recommendations to the Government. Recommendation 11 stated that: ‘That the full force of the Race Relations legislation should apply to all police officers, and that Chief Officers of Police should be made vicariously liable for the acts and omissions of their officers relevant to that legislation.’

YESTERYEAR, Kelso’s death led to a public outcry. LATER, Stephen’s death led to both a public outcry and a change in the law. TODAY is Stephen Lawrence Day, which “is an opportunity for people, communities, and organisations to come together and honour Stephen’s life and legacy, stand up against discrimination in our daily lives, and work towards a more hopeful tomorrow. Through reflection, learning, and action, we can inspire change and create a better future for the next generation.”

TOMORROW, who knows? The Celebration of the day in which it is UNIVERSALLY accepted that NO ONE is judged by or treated according to the colour of their skin, but SOLELY by or due to the content of their character? I dream!

Picture – Kelso Cochrane, c. 1959 (Courtesy of Keystone/Hulton Archive/Getty Images)

Stephen Lawrence Day Foundation

I have a dream by Dr. Martin Luther King Jr.

Ryan Clement, LLM, BA, BSc, barrister

https://www.youtube.com/@RyanClement1

Don’t forget your normal day to day activities

There are many parts to the statutory definition of “disability” that need to be fulfilled before one can be deemed a “disabled person;” none less so than the effect of the impairment – physical and/or mental – on one’s normal day to day activities. Remember, we are concerned with a ‘statutory’ definition under the Equality Act 2010 (‘the Act’). Therefore, focussing solely on the impairment is generally insufficient (there are exceptions).

This means, generally, if one proves that they have an impairment but fail to show the substantial (more than minor or trivial) and long-term (that has lasted at least 12 months; where the total period for which it lasts, from the time of the first onset, is likely to be at least 12 months; or that is likely to last for the rest of the life of the person affected) adverse effects of the impairment on their ability to carry out normal day to day activities they will not be deemed a disabled person under the Act. In the recent EAT (sitting in Edinburgh) case of Francis Mutombo-Mpenia v Angard Staffing Solutions Ltd the Claimant suffered from essential hypertension (impairment) and, therefore, claimed to be a disabled person under the Act. There was no dispute that he suffered from the alleged impairment but he failed to adduce evidence of its adverse effect on his normal day to day activities let alone whether such were substantial and long-term. Therefore, he failed to discharge the burden of proof that he was a disabled person as defined under the Act.

Disability under the Equality Act 2010

Notwithstanding the above, however, another interesting point was in issue, which ought to be of interest to employers and HR practitioners. The Claimant had completed the Respondent’s recruitment process. An application form formed part of this process on which he indicated that he did not consider himself to have any form of disability – See “Why People Hide Their Disabilities At Work” by Harvard Business Review. After he was appointed he refused to work on some (not all) night shifts due, generally, to his ‘health condition.’ The question is, was this (‘due to the Claimant’s health condition’) enough for the Respondent to have had constructive knowledge that he was a disabled person under the Act? No, said the ET to which the EAT agreed. The ET took the view that the Claimant’s reference to his ‘health condition’ was something that should have, “put the Respondent on notice to make further enquiries,” but it did not go so far as to say that the Respondent had failed to make such further enquiries.

Lessons to be learned. Firstly, it is important to note that reference to an impairment alone is, generally, insufficient to prove that one is a disabled person under the Equality Act 2010. Secondly, even if an applicant indicates that s/he is not a disabled person or do not believe themselves to be disabled is not conclusive and or determinative of the issue. For example, they may not even know! There was a case where a person was diagnosed with cancer. The question in that case, for the purposes of establishing when that person had an impairment, was it on the date it was ‘diagnosed’ or on a date prior to that where it can established that the the person must have ‘had’ the impairment? For example, if X clearly had an impairment on around 1 January but was unaware of it at the time but was diagnosed with it later on 1 June, when did X actually have the impairment? In this case it would be the former (1 January) and not the latter (1 June) – As the EAT held in Bennett v MiTAC Europe, “It is important to distinguish between a person having cancer and having been diagnosed as having cancer.” Finally, unlike in Mutombo-Mpenia, an employer could be found to have constructive knowledge of its employee’s disability – even where initially that employee had indicated to the contrary – if there are sufficient signs in place to indicate such and the employer fails to make such further enquiries accordingly.

Ryan Clement, LLM, BA, BSc, barrister

https://www.youtube.com/@RyanClement1

Hillsborough 15 April 1989

Ryan Clement

Writing about this day has been difficult on so many levels. Firstly, on a basic human level. Watching this tragedy unfold before my very eyes on television was painful on a level for which I do not possess the words that could accurately describe and reflect the degree of pain felt and feel. However, the pain and suffering of those at the game, direct friends and their families are simply unimaginable for some of us who were not at the game, not direct friends and or not a family member. Secondly, I have been going to football matches (and still do) since the age of around 8 or 9 years young. My first game was at Craven Cottage, the home of Fulham Football Club. By the age of 11, my closest friend and I had been to some of the biggest football stadia in the country. His dad was a big ‘football’ fan, as I cannot recall, at that age, whether he expressed which team he actually supported. So, by the age of 11 I had already been to Stamford Bridge (Chelsea) many times, Highbury (Arsenal) many times, White Hart Lane (Tottenham Hotspur), Old Trafford (Manchester United) twice, Baseball Ground (Derby County), Portman Road (Ipswich Town), Vicarage Road (Watford) many times, Upton Park (West Ham), Loftus Road (Queens Park Rangers) many times, Craven Cottage many times and Anfield 2 or 3 times, being the home of the team I support. The youngest victim of the Hillsborough Disaster was aged just 10, which would have been around the same age that I was visiting these grounds. My mother put her trust in my best friend’s dad to keep me safe and he in turn, I guess, put his trust in the appropriate authorities to keep us all safe. Thirdly, I am a Liverpool fan and have been since the age of first visiting these grounds. Lastly, as my best friend once did with his son, I now take my son to Anfield to watch the home team whom he also supports.

It was a sunny Saturday afternoon. I remember this very well. I was at my parents’ home in London and as working on quantity surveying work. It was before I was Called to the Bar seven years later. I had taken over the dining room table and covered it with architects’ drawings from which I was to take measurements. I was happy because Liverpool were in the semi-finals of the FA Cup against Nottingham Forest and, as good as Forest were (finishing 3rd in the table and we finished 2nd behind Arsenal after Michael Thomas (a future Liverpool player) scored ‘that’ goal in the title decider at Anfield on 26 May 1989), we were expected to win – well, in my eyes we were! Respectfully, I just could not see how Forest could handle our attacking force of Beardsley, Barnes, Rush and Aldridge whilst Hansen and company took care of business at the back.

The Hillsborough Disaster

What happened next has remained and will remain with me forever. As I grappled with measuring the strip foundations on the drawings, plans, elevations, sections etc., news was coming through that something was wrong at Hillsborough, which, as we now know, is an understatement of cataclysmic proportions. Pictures of fans on the pitch, overcrowding, injuries, people on stretchers etc. began to emerge that informed us, who were not at the game, that what we were witnessing was not simply something wrong but a disaster unfolding. I was glued to the television and radio in total disbelief. Had I been able to secure tickets for the match, I would have been there. Instead, my friends were there instead. I should clarify. When I said ‘direct friends’ earlier I did not mean that we as friends in the wider sense i.e. people, sports’ fans, football fans, Liverpool fans would be unaffected by this Hillsborough Disaster (by which it would be commonly known). Shortly after 3pm the match was stopped and abandoned. At the same time (3pm) on the same day (15 April 1989), the other big club in the city of Liverpool, Everton Football Club, were playing Norwich City in the other F.A. Club semi-final and won 1-0.

Later that evening, I attended a long booked engagement in Canterbury, Kent, with some friends who were studying at the University. It was supposed to have been an evening of fun and catching up. It was anything but. The Hillsborough Disaster dominated the occasion.

On 7 May 1989 Liverpool and Nottingham Forest played their match, which was held at Old Trafford. Liverpool won 3-1, which set up an all Merseyside F.A. Cup Final, which took place on 20 May 1989 at Wembley Stadium. There was a minute’s silence and both sets of players wore black armbands in memory of those who died in The Hillsborough Disaster. Both teams put on a spectacle of a match, which was won by Liverpool 3-2 after extra time. But, the result was a distant secondary in comparison to the tragedy that had occurred just the month before.

We lawyers will know of a famous case that arose from the Hillsborough Disaster. However, justice is still being sought from the families and friends of the victims.

Recalling this day alone has been an incredibly emotional encounter for many. I cannot know fully how those more closely related to the 97 fatal victims and the countless other victims who suffered and are suffering from physical and or psychological injuries must be feeling.

https://vm.tiktok.com/ZGJERjcf9/

My thoughts are with you all.

YNWA.

A human tragedy that touched the world of football

HILLSBOROUGH – The Report of the Hillsborough Independent Panel, September 2012

Ryan Clement, LLM, BA, BSc, barrister

https://www.youtube.com/@RyanClement1

Institutional Racism

Ryan Clement

The term, ‘institutional racism,’ was not written about in the first edition of my book, ‘Race Relations in Employment Law – Put Simply in Black and White.‘ It was a conscious decision because, as confirmed by the Employment Appeal Tribunal, “There is no statutory or other offence consisting of a body being institutionally racist.”

However, since its publication the term has been in the headlines for a variety of reasons. In fact, recently, a senior nurse who was employed by NHS England and NHS Improvement Commissioning as a continuing healthcare manager won her case of, amongst other things, discrimination because of race and harassment related to race and reportedly said, “It sadly proves that institutional racism is still present in organisations, despite the efforts to make it more inclusive for people of all races and backgrounds.”

As recently as 21 March 2023, Baroness Louise Casey of Blackstock who undertook an independent review into the Metropolitan Police’s culture and standards following Sarah Everard’s murder, said, ‘she felt not enough had changed since the 1999 Macpherson report, published after the murder of black teenager Stephen Lawrence, which labelled the Met “institutionally racist” – a problem the force is “yet to free itself from”.’

Various institutions are being labelled as “institutionally racist.” However, do we all know what this sensitive and often inflammatory term truly means and what would qualify an institution as being “institutionally racist” or not? Some argue that we do not need to trouble ourselves too much with definitions and labels, and that we need to focus mainly on the relevant policies, attitudes, practices, behaviours, procedures, training, cultures, checks and balances in place etc. I leave that for others to debate.

However, in the meantime, let us remind ourselves of a definition given of ‘institutional racism’ given in The Macpherson Report:

Taking all that we have heard and read into account, we grapple with the problem. For the purposes of our Inquiry the concept of institutional racism which we apply consists of:

The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.

In responding to Baroness Casey ‘s report into the Metropolitan Police, the head of the Metropolitan Police, Sir Mark Rowley, said, “”I don’t use the ‘institutional’ label myself”, arguing that the term is “ambiguous” and “politicised.” Clearly, there will be some who can recite unaided an acceptable definition of institutional racism (like Macpherson) and apply it to a given set of facts to see whether an institution can be fairly, reasonably or arguably be alleged to be ‘institutionally racist.’

‘Institutional Racism’ by Ryan Clement

HOWEVER, and I cannot stress this firmly enough, it is vitally important that one does one’s homework to enable one to speak with some authority or weight; one way or the other. Simply expressing a view or opinion, whichever view or opinion one holds, without being able to support it with sufficient reasoning and clarity that can be acceptable or challenged will carry as much weight as a house built on sand without any form of foundation or basis on which to sustain it. As Epictetus is quoted as saying, “First learn the meaning of what you say, and then speak.” In this sense, knowledge and understanding is power!

Ryan Clement, LLM, BA, BSc, barrister

https://www.youtube.com/@RyanClement1