Ryan Clement

☕️ Diversity and Inclusion ☕️

Ryan Clement

NOT EVERYONE buys into diversity and inclusion, and not everyone is sold on it either. Some say it does not work. Many believes it does. Some say the benefits, if any, are impossible to measure. Some say the benefits are obvious because there is a wider and diverse pool of talent from which to choose rather than the narrow same old, same old.

AS PART OF A SERIES of podcasts and videos on the working lives of those in various professions, I asked my guests whether they believed diversity and inclusion play or ought to play a role in their professions. The following is what two of them said.

Human Resource Manager, Ruby: I asked Ruby, how was diversity and inclusion part of her practice, if at all? “It is something we are very keen on. I think it is definitely something every employee needs to do. We do training. We have mandatory training. We have classroom training every year, so everybody has to undertake at least one online course. And we do one face to face course for everybody’s ‘mandatory.’”

Detective Constable Shaun: I asked Shaun, as a serving police officer, in his view, what role did diversity and inclusion play or should play in the police force? “It plays a very very important role. For me, we need different perspectives. We need people from different walks of life because it is no point looking at things one-dimensionally because then it will only impact on a small portion of the community. So, we need diverse voices. We need representation because I hate the feeling of anyone feeling left out. It is the worst feeling in the world when you are alone. There is no one speaking for you, and you are not being heard. So, in order to deliver a service that represents everyone fairly, understands individuals and their needs, we need to have an open mindset. And we need representation from the top all the way down. If I was a leader and I had a team around me, I would want a team that challenges me, challenges that forces me to look into myself and challenge my own biases, my own decision making, and not people that just nod and agree with me all the time. That’s no good to me!”

IT MAY NOT BE EVERYONE’S CUP OF TEA but many organisations and businesses we work for function within a diverse community. Such organisations and businesses should reflect the community and environment in which they function. I firmly believe that it is a competitive advantage for a business or an organisation to be as diverse as their customers and clients etc. Speaking for myself, where there is competition, all things being equal in the quality of service provided and cost, I am and would be more attracted to the more diverse of the businesses or organisations. For me, it’s a no brainer! It may not be everyone’s cup of tea, but it may be time to wake up and smell the coffee!

☕️

Disgraceful!

Ryan Clement

DISGRACEFUL! I am not referring to England football team’s defeat against Iceland at Wembley on 7 June 2024 as part of its preparation for Euro 2024. I am referring to the media coverage, following the defeat. Unfortunately, I missed the game but I assume that England were allowed to use more than one player and at any one time had eleven players on the field. Therefore, collectively, England/We lost their/our home game. That said, it is DISGRACEFUL that I see images in the press (and this may well be replicated in the wider media) focusing on one player. DO YOU SEE WHAT I SEE?

FOR CRYING OUT LOUD! This is neither subtle nor subliminal, it’s BLATANT! This has to STOP! In July 2021, following the late Euro 2020, I had cause to write an article, which I recite in full below. I would love to have thought what I wrote would have been redundant by now and surplus to requirements. Sadly, that does not appear to be the case.

THINKING ALOUD!

Every now and then I would come across an article, which I read at speed of which I get the gist and move on. After all, I practically read for a living. Then it takes a word or phrase to prick the consciousness to the point of, to ignore it would be unhealthy because of the level of examination it demands, commands and or requires. Until now, I have kept out of the public debate about the “blacklash” against the English footballers who missed their penalties in the final of the Euros against Italy. I hadn’t contributed because there were already excellent contributions that either reflected what I thought and would say or were more eloquent than I could have expressed myself and with which, again, I agreed. Firstly, it surprised me how many people shared my immediate instinct that the reaction to those three players not scoring their respective penalties were going to have far wider implications than the game, the penalties themselves or the result. It seemed inevitable based on perception. Secondly, and this is what struck a chord that led me to write this short piece, was an article I read recently that said that black people are accepted as long as they are winning. Like I said, I read many things at speed and move on and, true to form, did so on this occasion. However, untrue to form, I came back with two questions. First, accepted by whom? Second, is winning the same as having won? I tackled these in order.

Saka, Rashford and Sancho

On the first question, I sincerely and genuinely had, and have, no idea. Whom do I approach to thrash it out? Exchange ideas? Understand where that person is coming from? Debate the issues or our differences? In other words, to whom do I make my case for acceptance? I drew a blank on everything. Watching the Euros as I did, I could not help but notice the multiracial composition of the England fans, which, rightly, ought to be the case because supporting a country or ‘your’ country is not based on ‘race.’ Of course, if I am correct then this raises another obvious question, how did ‘race’ come into this? What gives someone the belief that they have the authority or the position to abuse these England and English players based on their socially constructed ‘race’? Part of the answer is in the question, I believe. In my view, Perceived authority and Position are key.

There is a perceived licence to behave this way without fear of any significant repercussions that would move society to a place of respect and dignity for all. For example, it would be inconceivable that supporters of England and English supporters would have racially abused three white players had they missed their penalties. It is so implausible a thought that, thinking of the question alone is laughable if it were not on a serious point. And, let’s face it, we have the samples to test my point. Remember, we have had it drummed into us that we are not good at penalties on the international stage. Yet, I challenge anyone to find evidence of racial abuse aimed towards those ‘heroes’ of the past who adorned the England shirt and stepped up bravely to take a penalty for their country and missed. You will struggle. So, back to the point under examination. I can only conclude that if I cannot go to a single person and ask for acceptance, we must be dealing with an invisible force with its unwritten code that leads one to ‘believe’ that they have the power, authority or licence to act the way in which they do. In other words, one can embark on such a campaign, knowing that the recipient, even if minded to “retaliate” could and would never have the same mass impact or effect let alone power, authority or licence. I accept that I cannot drop in the word ‘licence’ without seeking to define what I mean by that. The licence I am referring to is that granted by some various institutions in which one would feel confident to express themselves in such a way and with the knowledge that it would either have a desired effect or that the victim cannot respond to such a degree that makes the attacker feel as the victim does. If I am wrong then I invite Dr Sewell and friends to put me right with specific reference to what we have witnessed recently.

Now to my second issue. I form the view that winning is not the same as having won. To me, “winning” is fluid. You may have been winning but you lost. After all, England was winning against Italy after only 2 minutes, which would have meant that the players in question (whether they were all on the pitch at the material time or not) were accepted but England lost after 120 minutes, so that acceptance was taken away (as opposed to withdrawn). My point is, even if we – yes, “we” I was born in Chiswick and schooled in Fulham – had won the Euros on penalties with all the said three scoring but, say, lose the World Cup with all three missing, the reaction would be precisely the same. The ‘acceptance’ at the Euros would be taken away at a subsequent defeat. This is somewhat disturbing on many levels. Firstly, if you excuse the pun on a very serious note, there is always a moving goal post. Secondly, which touches partly on the first, who is it that decides the rules? If you can know if you are winning then surely you ought to know when you have won. But the reality is, there appears to be unwritten but changeable rules that those who are potentially most adversely affected by the changes appear not to have a say in that constitution. In that case, the cards are continually stacked against them. They can never win in the eyes of some.

I had planned to leave the above there. Say my piece and leave but I feel compelled to say more. It seems to me, as I cannot go to an individual and reason with that person to any meaningful degree, it would be wise to participate constructively in the institutions that allow this negativity to flourish and to have a seat at the table for a fairer, just and respectable society.

PS THE DAY AFTER this blog was published the BBC reported the following, “Media criticised for use of Saka image in England defeat.“

#KICKITOUT!

HEAR! HEAR! 🥂

Joining the Force

Ryan Clement

WHEN I WAS GROWING UP, many of my friends wanted to be a footballer, doctor or lawyer. In our minds, the first was a possibility whilst the second and third were merely distant dreams rather than true or real tangible aspirations. They had a ring to them, in that order; doctor or lawyer not vice versa, and highly unlikely.

WHAT I NEVER HEARD was someone say that they would want to be a police officer. I cannot say why that was the case, it just was. I cannot even blame it on my or my family not knowing anyone, personally, from the Force because neither my family nor I knew a doctor, other than the family GP, of course, or a lawyer, either, so it cannot be my or our lack of connection or ties.

Detective Constable Shaun Pascal

SO IT WAS, THEREFORE, A PLEASURE to interview Detective Constable Shaun Pascal recently who gave us an insight into the life of a serving police officer. He began by telling us what led him to join the Met Police, saying, “I joined the Met because I wanted a challenge.” There can be no question that policing the capital can be amongst the most challenging of jobs. However, DC Pascal was very positive on this point. I asked him what was his biggest challenge to which he replied that his biggest, initially, was, “overcoming that fear that had been instilled in me. But, to be honest, there was actually no need for me to worry at all. It was the exact opposite.” He was, “embraced, supported and nurtured.” He stated that, “people are people. As long as you treat them with respect regardless of the race, religion, background. Show empathy. You try and understand their traumas and why they may react to you in the first instance, and you actually take the time to listen and show them that you are listening.” Concluding that, “the public do come around.”

I ASKED DC PASCAL whether, in his opinion, diversity and inclusion plays or should play a role in the police force. He said, “It plays a very important role,” and went on to say, “We need different perspectives. We need people from different walks of life because it is no point looking at things one-dimensionally because then it will only impact on a small portion of the community. So we need diverse voices.” I could not agree more.

FINALLY I asked DC Pascal, in the next 10 years, “What Shaun would I see? What would have happened over those 10 years or what would Shaun like to see?” He replied, amongst other things, “I’d like to say that we’ve made progress, tangible progress, and that we’re in a better place. We are not having the same conversation.” Hear, Hear! I cannot add to that! 👏🏾👏🏾👏🏾

SEE ALSO:

Barrister Ryan Clement meets Human Resources Manager Ruby Thomas

Barrister Ryan Clement meets Primary School Teacher Marietta Payne

WHISTLEBLOWING!

Ryan Clement, barrister

IN THIS BLOG I discuss Protected Disclosures aka ‘whistleblowing’ within the context of employment, which is what a whistleblower has to make in order to be protected from suffering a detriment or be dismissed because they ‘whistleblew.’

A PROTECTED DISCLOSURE is a qualifying disclosure that is made by a worker to, for example, their employer or a body that has legal responsibility for the employer or a person, working for the employer. Such as, for example, for schools, doctors and social workers, it would be Ofsted, the General Medical Council and Social Work England.

“Whistleblowing” in Employment by Ryan Clement

So, if you make a qualifying disclosure to someone outside of those bodies, as interesting as the disclosure might be to the recipient, it will not amount to a protected disclosure. Beware!

So, what is a qualifying disclosure? It is any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of those I have mentioned has been, is being or is likely to be deliberately concealed.

NOTABLY, it is immaterial whether the relevant failure occurred. So, it is no defence to say that the alleged wrongdoing did not occur so the whistleblower was fairly dismissed. No, one would still be liable if the disclosure, which would have been in the public interest, was made in the reasonable belief of the worker making it. HOWEVER, a disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

TO SUM UP, Firstly, there must be a disclosure of information. Secondly, the disclosure must be a qualifying one. Thirdly, in order to be protected it must be made to the appropriate authority, such as, for example, one’s employer.

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 🕊️