Ryan Clement

Freedom of Speech and Expression?

Ryan Clement

At 5.30pm on 6 May 2023, my son and I were at Anfield for the Liverpool match against Brentford. It was Coronation Day. I was not aware until the day before that teams were required to play the National Anthem (God Save the King) and that may cause a problem with some sectors of the crowd. A friend of mine put me on notice on the Friday by directing me to a statement put out by Liverpool Football Club.

After reading the statement, I undertook some research to understand what these, ‘strong views,’ were and why they were held. There is, literally, a raft of information about it. So I was now prepared for what might be.

I visit Anfield quite a few times during the football season and I video a lot. This game was no exception (hence, the videos below). After the teams ran out it was announced that the National Anthem would be played. We observed. You all know what happened next (but if not, see below). Driving back down south, we listened to much debate on the radio over what we had witnessed. By the time we arrived back in Surrey after midnight it was all over the internet and social media. There were and are some angry, very angry, exchanges by many. These exchanges got me thinking about the notion of ‘freedom of speech’ and ‘freedom of expression.’ I understand both sides of the debate. Some argue that what they witnessed in person, on television and or radio was disrespectful or, possibly, even treason. Others argue that in a democracy people have the right to protest, freedom of speech and or expression.

This blog is not about arguing for one side or the other. Both sides of the debate have argued and are arguing their case vociferously (some eloquently, some less so) without my tuppence worth. However, what this is about, are the rights by which both views might or could be viewed. For me, a place to find assistance is in the Human Rights Act 1998 and the Convention for the Protection of Human Rights and Fundamental Freedoms/European Convention on Human Rights.

ARTICLE 10

Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

I believe that most of us would accept that, ‘Everyone has the right to freedom of expression.’ The problem for most of us (myself included, of course – hence ‘us’) is when that which is expressed by one offends the very core and fundamental values of another to the point that such view is received as not even worthy of being heard (let alone said) and is deemed repulsive. At what point do we draw the line and say that a view is unacceptable to be expressed publicly? Before some say no line should be drawn, I would respectfully disagree and say think again. Think about ‘Hate speeches’ or speeches that advocate violence against innocent victims etc. It’s not easy because sometimes it is difficult to accept that some people can hold views that some of us are diametrically opposed to; views that are not based on ‘Hate speeches’ or do not advocate violence against innocent victims etc. I think this clip from the film, The American President by Michael Douglas, sums up this point succinctly.

Like I said, I have read some strong views and some questioning some protestors’ patriotism or, interestingly, some of their rights to remain in the U.K. I confess, I struggled with that one! Neither my son nor I was a protestor – it is not my/our quarrel. However, I am no more or no less a supporter of my team than those who were protesting. I cannot speak for someone else’s patriotism and neither do I wish to; they can speak for themselves! All I can say is, if you excuse the pun, our means or paths to our goals may be different but our goals can still be the same.

The National Anthem played at Liverpool v Brentford on 6 May 2023

The National Anthem and You’ll Never Walk Alone at Liverpool v Brentford on 6 May 2023

Please note that I DO NOT own the copyright to the image of Mr. Michael Douglas, which is an image taken from the film, The American President (https://www.imdb.com/title/tt0112346/).

Ryan Clement, LLM, BA, BSc, Barrister

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

First Among Equals

Ryan Clement

A family member of mine has been tirelessly championing the cause and fighting the case of seeking to de-stigmatise issues surrounding Mental Health – see, for example, ‘Stigma and Discrimination‘

Under s.6 of Equality Act 2010 a person is disabled if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In practice, however, a claimant does not need to prove that their disability falls into one category or the other, and, of course, some fall into both. A6 of the Equality Act 2010 Guidance says: “It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa.”

Disability Discrimination

Naturally and legally, victims of discrimination suffer hurt feelings. There is no doubt that stigma is attached to some physical impairments. But, if it is widely accepted that there is among some a stigma attached to those with mental health issues, where a claimant can show and has proven that their disability was one of mental impairment, should there be rebuttable presumption (compensation automatically increased), taking into account ‘stigma’ when considering the level of award for injury to feelings in order to compensate the victim adequately?

I can see how such an automatic ‘stigma’ increase could lead to a wider debate by some seeking to argue that one form of discrimination is worse (or less) than another i.e. sex v ‘race’; age v sexual orientation etc. and such increased compensation should apply in such cases also. We don’t want to go there! Also, some might argue that ‘Aggravated Damages’ already fulfil this role. However, as remedy is there to ‘compensate’ and not to ‘punish’ we might wish to consider whether it would be fair to put the burden on the claimant, suffering from mental health, to show that such stigma is present and an award should be increased accordingly rather than simply increase it from the outset and leave it open for a party to argue why such increased award would not compensate but penalise in the circumstances/based on the facts of the case.

Vento Guidelines for injury to feelings

Like I intimated above, I am alive to the question of should disability be treated differently from the other protected characteristics? However, we are referring to an ‘impairment,’ which, in some ways, is already, naturally, treated differently under the 2010 Act – for example, the duty to make reasonable adjustments – see s.20 and s.21.

Food for thought!

Stigma and Discrimination

Mental Health Awareness Week: Fans, players and the future king discuss mental health

Mental health: 10 charts on the scale of the problem

Ryan Clement, LLM, BA, BSc, Barrister

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

Unfair Dismissal & Wrongful Dismissal

Ryan Clement

TODAY, I am going to discuss the distinction between unfair dismissal and wrongful dismissal, as the two are thought to be one and the same but for the adjectives. They are not. For example, a former employee may well be found to have been fairly dismissed. In other words, not unfairly dismissed but by the same time deemed to be wrongfully dismissed. Therefore, fairly and yet wrongfully dismissed. Let me explain.

TO BEGIN, unfair dismissal is a statutory concept found in the Employment Rights Act 1996 and is based on the employer acting reasonably when deciding whether or not to dismiss an employee. Currently, save for some exceptions, an employee does not acquire the protection unless they have been continuously employed by the employer for at least 2 years.

ON THE OTHER HAND, wrongful dismissal is a common law action and is based not on reasonableness but on the balance of probabilities. The damages for an employer wrongfully dismissing an employee, which would amount to a breach of contract, is that the employee is entitled to payment i.e. salary/wages for the duration of the notice period under the express or implied terms of the contract of employment. Whereas the remedy for unfair dismissal is, in addition to reinstatement and re-engagement, capped at the former employee’s annual salary or that prescribed by law.

Unfair Dismissal and Wrongful Dismissal Explained

IN SUMMARY, therefore, an employer could be found to have fairly dismissed an employee because it acted reasonably in doing so but, at the same time, on the balance of probabilities, be deemed to have breached the employee’s contract by wrongfully dismissing the employee for the same conduct in question.

Ryan Clement, LLM, BA, BSc, Barrister

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

Bullying and Harassment

Ryan Clement

There has been much media interest on the subject of bullying recently. The reason for that is not the purpose of this blog. The purpose of this piece is to explain what Bullying and Harassment are.

Bullying in the Workplace

A bully is, “a person who habitually seeks to harm or intimidate those whom they perceive as vulnerable,” and the act of bullying is to, “habitually intimidate, abuse, harass…or to coerce or compel,” by bullying. OED.

Not unnaturally, Bullying and Harassment would normally fall under the same chapter/heading in the Employee/Staff Handbook. Bullying is, effectively, the unwanted conduct of the acts of bullying by the target of such acts, whom I shall now call the Victim, by the person conducting or responsible for such unwanted acts, whom I shall now call the Bully.

Obviously, acts of bullying can take innumerable forms. It can be from the most subtle to the most obvious of acts/conducts. What is certain, however, is what is an unwanted conduct for one person may not necessarily be so for another. Therefore, what amounts to bullying is subjective to a large extent, and that subjective decision is that of the Victim (their perception) not of the Bully. In other words, one hat of interaction does not fit all. Each colleague is different and unique, and is to be treated differently and uniquely.

Direct Discrimination and Harassment

That said, it would be fair to say that, taking everything into account – the context/the circumstances of the matter; the Victim’s hierarchical position relative to the Bully’s in the organisation (note that a Victim who is higher in an organisation’s hierarchy can also be bullied by a Bully on the same or lower hierarchical level); or the Victim’s vulnerability, temperament, emotions etc. (the list goes on) – there is an element of objectivity, but only to the extent of determining whether the conduct in question could reasonably amount to bullying.

Non-exhaustive examples of bullying are the Victim consistently being undermined; continually given or being overburdened with more work than their colleagues; ignoring them or putting them down in meetings etc; shouting at them, especially in front of their colleagues etc. Again, the list goes on.

s.26 Equality Act 2010

Harassment: (1) A person (X) harasses another (Y) if—(a) X engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of—(i) violating Y’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for Y. In deciding whether conduct has the effect referred to in (1)(b), each of the following must be taken into account—(a) the perception of Y; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

Generally speaking, harassment is a statutory concept (unlike bullying) of s.26 Equality Act 2010 that is similar to bullying but must relate to one or more Protected Characteristics such as age; disability; gender reassignment; race; religion or belief; sex; and sexual orientation.

If you feel you have been bullied or harassed you may raise a grievance on those grounds. Now, this is where the two run in parallel but only to a point. An employee can present a claim of harassment to the employment tribunal whilst still employed by their employer. However, as bullying is not a standalone claim a bullied employee cannot do the same in respect of bullying alone. If an employee has been bullied they can resign and claim constructive wrongful dismissal. However, with exceptions, they can also only bring a claim for constructive unfair dismissal if they have worked continuously for their employer for a stipulated period, which is currently 2 years. It should be noted that an harassed employee can also resign because of their harassment and bring a claim. For completion, a worker who is not an employee under a contract of employment may also bring a claim for harassment, but that is for another blog on another day.

A word of caution. This area of employment law is very complex and, as with all potential legal claims, specific legal advice ought to be sought from a legal specialist before any material steps are taken.

Ryan Clement, LLM, BA, BSc, Barrister

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

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