Ryan Clement

We Reap What We Sow!

Ryan Clement FRSA, barrister

IN THE UK, as we are about to enter a season of political rhetoric, soundbites and accusations (true and false), it was a pleasure today to speak in every class of Our Lady of Lourdes Catholic Primary School & Nursery in North West London as part of its Careers Week, which finished today.

I BROUGHT MY COURT ATTIRE OF WIG AND GOWN (ROBE) with me, which some of the children tried on. This was clearly the first time that many of them had met a barrister in person and had asked me many interesting questions. For me, it was important that they did. I never had such an opportunity when I was their age. Meeting, let alone have the opportunity to chat and ask questions of, a barrister, writer, doctor, scientist etc. was unheard of. But, equally important, I was never told that I could aspire to become one. I don’t know why. I was too young and, furthermore, in those days, we were not encouraged to ask questions of adults unless given express permission to do so (by the same adults themselves!).

HOWEVER, the Headteacher, who was absolutely fantastic, and I made sure that these young, keen acorns knew that they could achieve/acquire any profession, trade, skill and much more if they so wished and desired to do so.

I WAS QUESTIONED by the children about becoming a barrister and writer. There were no prohibitions in asking me any question. In fact, the school/Headteacher and I encouraged and invited them to raise questions freely; and that they did! It was an absolute joy to meet these inquiring minds.

AS I SAID, despite the U.K. now being in political campaign season to see who would be the next political party to be voted into power and, in turn, who would be elected the Prime Minister for the next 5 years, a Member of the British Parliament, Dawn Butler MP, attended and gave a first class speech about her journey to becoming an MP. The MP for Brent Central, who at the last General Election in 2019 had a majority of 20,870, inspired the children to achieve whatever they set their minds on/to. She was absolutely brilliant. It was a pleasurable experience to witness each and every child being attentive, engaged and encouraged to achieve what their young hearts so desired.

IT IS IMPORTANT NOT TO FORGET that we adults and, on occasions, role models have their future in OUR hands and, in turn, they have OUR future in theirs! We shall only reap what we sow, NOW, so let us nurture those eager, hungry for knowledge and keen minds to create and have a bright and brighter future for us all and for all OUR benefit! 🪴

Thank You

Human Resources

Ryan Clement

TODAY, 20 May 2024, is International HR Day. I have the pleasure of working with a wide range of people who have a wide range of skills. As I am instructed by both claimants and respondents, I inevitably work closely with and alongside many Human Resources Managers.

Something that has struck me over the years whilst working with numerous HR Managers is the width and breadth of their discipline. Where does it begin and where does it end? The answer may not be as simple as you may think or believe. For example, it does not begin with an employee’s first and last day of employment with a few things in between. From my experience it is much much much wider than that. And, without doubt, HR can be very influential on many, if not all, aspects of and the discussions taken within the company.

There is also the issue of some who undertake the HR function because either they work for a small company that is unable, or it is not financially viable, to employ a full-time HR manager or, out of everyone else at the company/organisation/firm, they are the closest or nearest fit to undertake the task or HR function. Occasionally, the function of HR is not even being undertaken by the person carrying the title, ‘HR Manager,’ which, as you can well imagine, can be somewhat disturbing, especially when it comes to handling and advising on grievance and disciplinary matters.

Rather than be the interviewee, as has always been the case for me, I turned interviewer to have my questions answered for a change. I chose a friend of mine, Ruby, is the HR manager for a multinational company. There was no discussion beforehand, as we were both passing by, so to speak. We did the one take with warts and all. Personally, I was grateful to have an insight into this wide-ranging profession where, I am told, there is, ‘no typical’ day. But, despite its challenges, “HR is a Great career!” I have taken away many things from my chat with Ruby, but one stands out above others, “It feels like sometimes HR is the last resort. It should be the first!“

Brown v. Board of Education

Ryan Clement, barrister

TODAY marks the 70^th anniversary of the U.S. Supreme Court’s landmark decision in Brown v. the Board of Education, which put to an end the “separate but equal” precedent set by the Court over half a century earlier in the case of Plessy v. Ferguson.

IN A NUTSHELL, the challenge was against a segregation policy that forced black and white children to be educated separately. In the case of Oliver Brown, his daughter, Linda, was denied entry to and, therefore, could not attend a nearer all-white elementary school. In consequence, Linda was required to take a bus to an all-black school much further away. Notably, the Brown family’s chief counsel was Mr. Thurgood Marshall (as he then was) who went on to became the first African American to serve as a U.S. Supreme Court Justice.

On 17 May 1954, the U.S. Supreme Court ruled, amongst other things, in the class-action case named Brown v. the Board of Education, in a unanimous judgment (9-0) delivered by Mr. Chief Justice Earl Warren, “We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”

The Chief Justice went on to say, “Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”

Timeless!

“WHISTLEBLOWING” IN EMPLOYMENT AND THE WORKPLACE

Ryan Clement

IN THIS ARTICLE, I am going to discuss, ‘Whistleblowing,’ from an employment perspective.

FIRST THING to make clear are two things. It’s not about actually blowing a whistle to one’s employer, although, of course, there is nothing in law preventing a worker from doing so when disclosing information about a wrongdoing. Second, which might come as a surprise to some people. If you search your statute books for the title, ‘whistleblowing,’ you’ll be searching in vain because it is not its proper name. The law is in fact found under the less flattering title, ‘Public Interest Disclosure,’ within the Employment Rights Act 1996.

EFFECTIVELY, as we shall discuss, ‘whistleblowing,’ is revealing something to an appropriate authority, which may include one’s employer or someone for whom one works, but not necessarily so, about a prescribed set of wrongdoing, the whistleblower believes has taken place, which is in a public interest. The whistleblower is then protected from suffering any harm from, say, the employer or, for that matter, anyone who engages them for blowing the whistle.

Such harm could be, for example, dismissal, no pay rise, no promotion, but not limited to these. This area of law is highly technical, but I shall break it down to aid one’s understanding and to make it as palatable as I can to enlighten you of this very important area of law.

NOT every alleged perceived wrongdoing would amount to ‘whistleblowing’ under the Employment Rights Act 1996. It must be one that qualifies. If it does not qualify, then the worker runs the risk of not being protected in law from suffering a detriment or being dismissed based on what may have been nothing more than a bare complaint.

So, what makes a disclosure of information qualify as being a public interest disclosure, a.k.a. ‘whistleblowing’? There was much debate a few years ago as to what amounts to information. For example, is information only one of fact or opinion, or can it be a mixture of the two, i.e. fact and opinion? It is widely accepted as being the first and last, i.e. fact or a mixture of fact and opinion. Importantly, however, the whistleblower need not be an employee. It is enough for the person to be a worker, i.e., in general terms, someone under a contract who undertakes to do the work personally.

Whistleblowing by Ryan Clement

THE ALLEGED WRONGDOING must be in the public interest. In other words, if it is an alleged wrongdoing that amounts to a personal matter and no more, the disclosure of information will not amount to, ‘whistleblowing,’ in law and, more to the point, will not afford the worker the statutory protection and or rights under our discussion. So, a complaint that one’s employer has run out of tea bags or failed to stock up on Earl Grey in the staff Canteen, important as they may be to some, is highly unlikely to be in the public interest. So, what qualifies as a disclosure of information?

A qualifying disclosure of information is one where, in the reasonable belief of the whistleblower, reveals at least one of the following alleged wrongdoing: a criminal offence; a failure to comply with an illegal obligation; a miscarriage of justice; endangering a person’s health and safety; damaging the environment; or concealing any of these.

IMPORTANTLY, it is immaterial whether what is alleged is true or false. As stated already, the worker is protected if they ‘whistleblew’ in the reasonable belief that the malpractice in question had occurred, occurs or would occur.

The question I hear, therefore, is, ‘Why whistle blow in the first place?’ Unfortunately, I don’t have an answer for that because that is a, ‘How long is a piece of string?’ type of question. It could be moral, ethical, legal, and in some cases, financial, as well as a mixture of them all.

In the US, for example, in some cases, you can make a financial claim for whistleblowing. But I am not here to discuss the reasons for people acting the way they do. So, let’s consider the consequences of ‘whistleblowing.’

PUT SIMPLY, if you have made a qualifying disclosure, you are protected from suffering a detriment or being dismissed. Effectively, a detriment is anything short of a dismissal. So, what is the approach adopted by the court in determining whether a ‘whistleblower’ has so been treated?

Well, if the reason, or if more than one, the principle reason, for the dismissal is that the ‘whistleblowing-employee’ made a protective disclosure, they will be deemed to have been unfairly dismissed. Note that a stipulated two years’ continuous employment does not apply to qualify for protection from being unfairly dismissed and damages are not capped as in ordinary unfair dismissal cases.

In the case of the ‘whistleblowing-worker,’ that person is deemed to have suffered a detriment if there has been any act or any deliberate failure to act by the employer on the grounds that the worker made a protective disclosure.

I hope this has been helpful in what is a highly technical area of law

UNTIL NEXT TIME!

Ryan Clement, LLM, BA, BSc, FRSA barrister

Podcast on Apple

THE VERDICT

Ryan Clement, LL.M., BA., BSc., FRSA, barrister

UNLIKE within some jurisdictions (where some jurors become celebrities in their own right if chosen for high-profile cases), we in the UK are not privy to the deliberations of a jury. If you haven’t yet watched or heard Channel 4’s experiment in, ‘The Jury; Murder Trial,’ and are in a place where it can be aired, I urge you strongly to invest 200 minutes, spread over four parts, of your time to watch or listen to it. Personally, and professionally, I found it interesting, intriguing and disturbing in many ways.

I often train managers on dealing with evidence when conducting grievance and disciplinary hearings in the workplace, and how to seek to arrive at findings of facts on which to base their conclusions.

HOWEVER, without wanting to spoil it for those yet to watch or listen to The Jury, it soon becomes apparent that the evidence – the starting point or foundation from which one (the juror) is supposed to build and formulate within their own minds what they believed happened, as a matter of fact – gets relegated in place of and substituted for matters unconnected (and at times unrelated) to the actual evidence before them (i.e. based on issues that happened outside of the courtroom itself). We all have our biases, whether we are conscious of them or not – hence the term ‘unconscious bias,’ of course. But, sorry for the spoiler, what struck me, was the degree of influence by the louder (or loudest) and the more frequently spoken of the jurors over the perceivably quieter (or quietest) and less vocal. I can see how one can perceive the former as bullying the latter into coming round to their (the former’s) way of thinking or desired outcome.

ALSO, another thought occurred to me. If not feeling bullied, the latter could mistakenly take the frequently-talking-loudly-former as somehow possessing superior knowledge on the interpretation of the evidence heard or, worse, having special insight on the case and the law. I daresay that this pattern of behaviour is not confined solely to a jury’s room. But what was troubling, amongst many other things, is in a criminal trial, someone’s liberty is often at stake, and if not so, their reputation and or they face future adverse repercussions based on decisions that were influenced by some personal experience of a juror, the aired views of the loudest, the frequency of one’s verbal contribution etc. I would also add, the confidence or the lack of confidence of a juror could (and did, in my view, in The Jury) play a significant part on whether a defendant is deemed to be guilty or not of the offence in question.

But haven’t we forgotten something? Where does the evidence fit it? Answer? I have no idea. Why? Because unlike with civil cases – the jurisdiction within which I practice – juries do not give reasons for their verdict. They are no published facts found by them. We jump from evidence to verdict: ‘Guilty!’ or ‘Not Guilty!’ No ‘Why?’ or ‘How?’ An innocent person could be found to be guilty of an offence and, yet, have absolutely no idea as to how the evidence against them was interpreted or weighed by those 12 privileged members of the jury or why the evidence was found against them. Could you imagine such torment? Innocent and yet found guilty but have no idea how or why your peers arrived at that conclusion beyond the evidence heard – true or false – and, therefore, unable to challenge parts to prove your innocence or fight for your freedom!

You may well, therefore, ask yourself whether the current jury system is fit for purpose! 🤔

https://www.channel4.com/programmes/the-jury-murder-trial

Seasons Greetings

Ryan Clement

SEASONS GREETINGS TO ALL!

I HAVE MANY FRIENDS who celebrate Christmas and many who don’t, both from a religious perspective and some for other reasons. Whatever your beliefs, convictions and or plans, I wish you all well during these challenging times worldwide.

IF YOU PLAN to celebrate during this Festive Season or not, for whatever personal beliefs you hold, whatever you do, I wish you Good Health, have a Good Time, and please Be Safe!

Peace 🕊️

Why?

Ryan Clement

ON SUNDAY, 17 December 2023, all being well, I shall be at Anfield for the match between Liverpool and Manchester United to which I am very much looking forward.

This week I was driving to court. I was thinking about the upcoming ‘Man U’ match and my last trip to Anfield, which was the game against Everton, the Merseyside Derby.

My journey took me through Crystal Palace, where, at Selhurst Park, only the weekend before, Liverpool got a late winner to secure all three points and move them to the top of the Premier League. I was driving to Croydon where I parked my car for court. On my way I noticed flowers and pictures on the other side of the road, my right side. The building was adjacent to where I was going to park, so I parked and walked over. I was reminded of the horror that occurred on 27 September 2023.

It was the site where a beautiful 15 years young schoolgirl, Elianne Andam, lost her life in the most tragic circumstances. Her future was taken away from her when her life was needlessly taken away. It was devastating to be at a site of this tragedy, this horror. It was painful at the time when the news broke on social media, newspapers, television and radio. It was worse, standing at the actually site where one day she said goodbye to her family to embark on her journey to school, embark on her studies to shape her bright future. She was never to return. How very very cruel. Why?

Manchester United are, traditionally, a big rival to Liverpool for many reasons. As a Chiswick born person, growing up in Hammersmith and schooled in Fulham, all in London, I have not personally experienced any city-rivalry between the two. Mine is based solely on the football. However, win, lose or draw, I want to see a good game. Yes, I am a Liverpool fan, but the game, rivalry and result must be put in its proper and rightful perspective. As the 57,000 capacity crowd gather to watch the rivals battle it out to either maintain their top spot or move up the table, there are many people suffering horrendous of lives as I right. There are many who will be facing this time of year without a loved one for the first time. They’ll be many who will face this Festive Season – for some who celebrate it – without someone’s joyful smile that was with them only this time last year! My thoughts are with them.

PS The Liverpool v Manchester United finished 0-0

What is Art?

Ryan Clement

OF COURSE, I don’t really know the answer to this age-old question, but my very good friends, F and M, and I may well have come very close to an – rather than ‘the’ – answer.

WE WERE CELEBRATING A VICTORY in a recent court case. We were enjoying our meal in Wembley – they had kindly made the journey South solely for my convenience. We, sorry, I had elected for an Indian meal. Had I known that F was a regular Master Chef of the dish as often as I am a regular consumer of the cuisine, I would have elected for Thai, followed by Chinese instead. Too late, but that hadn’t damped our wonderful evening of laughter, reminiscence of the case, joking and everything else in between. In fact, to label or limit our evening solely as ‘wonderful’ does not, in any way, do it justice.

ANYWAY, back to the theme of the title. As the evening unfolded and I consumed my chicken Dhansak with pilau rice washed down subsequently with a large glass of cold mango lassi, M revealed that F loved to paint and was an artist. Naturally, I asked to see some of her work, which she showed me on her phone. Magnificent! I was genuinely taken aback. They were colourful, unique and engaging. I loved and love her works of art.

F revealed that she did not have a studio in which to paint and would erect her easel wherever she finds space at the time to create. Whatever the process, it works! We then embarked on, What is Art? To me, Art is anything that is created or arranged in some way that moves someone to react emotionally in some way. I know there is more to this – and tonnes of books on the subject – but that’s my short take on it. We spoke about Marcel Duchamp’s ‘Fountain’ as a case in point, a porcelain urinal signed “R Mutt. 1917” - that’s it! – being a famous work of art. By my definition, a work of art is fluid and may mean different things to different people; even the same piece. Two of us could listen to some music and be moved in different ways or one of us may not be moved at all! I say fluid because I am a big jazz fan today but was not a fan until I saw Randy Crawford and The Crusaders in concert in London. We went to see only the former and ended up falling in love with the latter (we already loved the former!).

I guess the fluidity of it hit me more when, a few years ago, there was this discussion or debate over what was art? It arose because people were questioning whether some of the works of Damian Hirst and Tracey Emins were truly art. It was topical at the time because of the recent exhibition of Ms. Emins’s ‘My Bed.’ Years later, my soulmate and I visited Tate Britain in London and saw the bed in question, live – until that time I had only seen pictures of it. We tagged on to a group who was having the ‘inspiration’ behind the bed explained. Prior to this, the bed meant nothing to me beyond resembling my messy bed as a teenager – with some exceptions. Then, it changed. It made sense.

One is supposed to separate the Art from the Artist, but on this occasion the story behind the art made me appreciate the art itself or at least understand it. In my mind, at that moment, to ME, it became Art. Why? Because I had a reaction to it in a way that a creative piece – music, film, literature etc. – does. I took this picture of it at the time.

MANY YEARS LATER, the family and I were in Liverpool and visited Tate Liverpool. Unbeknown to me, Ms. Emins’ bed was now being exhibited there. I took a picture and then remembered that I had also taken a picture of her bed in London. You can compare how accurate the two are – between London (above) and Liverpool (below) – or how close she managed to recreate the same.

ANYWAY, back to the evening. We left the restaurant a little jollier than we had when we arrived – which was some achievement because we were already cheerful, jovial and good-humoured before we arrived! However, we were not entirely convinced that we had, in fact, cracked the age-old question of What is Art? But, we had a great time over good food, good talk and, above all, good company trying!

U.N. Declaration of Human Rights

Ryan Clement

TODAY, 10 December 2023, marks the 75th anniversary of the United Nations Universal Declaration of Human Rights, which came into force in 1948, being just 3 years after the end of World War II.

The Declaration provides that, as human beings, we are entitled to stipulated basic rights regardless of race, colour, religion, sex, language, political or other opinion, national or social origin, property, birth or other status. It has formed the basis of many domestic laws worldwide.

For example, ‘The Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights, was opened for signature in Rome on 4 November 1950 and came into force on 3 September 1953. It was the first instrument to give effect to certain of the rights stated in the Universal Declaration of Human Rights and make them binding.’

Even the Equality Act 2010 in Britain makes it unlawful to discriminate against another because of protected characteristics, such as:

age;
disability;
gender reassignment;
marriage and civil partnership;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation.

Looks familiar?

Undoubtedly, I think, the Declaration has been influential – I doubt it could have lasted 75 years otherwise – however, I shall leave it to others to debate how influential and, importantly, successful it has been. For certain, it has formed or been influential in forming the basis of many anti-discrimination and Equality laws and declaring basic human rights, but has this been enough? You decide.

Hillsborough Charter

Ryan Clement

As a sports’ fan, As one that attends many live sports’ events with and without my son, As a barrister, As a football fan, As a Liverpool fan, The Hillsborough Disaster was and is immensely painful.

Families of the victims have been pushing for ‘Hillsborough law’ to outlaw alleged police cover-ups after major incidents.

In December 2023 the Government signed the Hillsborough Charter, which stops short of what many wanted.

For those of you who are not familiar with what happened on that tragic day, in brief and in grief, 97 Liverpool fans died as a result of a crush at the Hillsborough stadium in Sheffield during the club’s FA Cup semi-final against Nottingham Forest on 15 April 1989. Gone too soon! 🥲

Hillsborough Disaster

Hillsborough Charter – TikTok – Part 1 and Part 2