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item0075C 1054, 1055 1054 December 2004 BNP
We are still holding our breath, in Swansea, following the distribution of a virulent and scurrilous leaflet by the BNP, throughout central Swansea. I am still reluctant to re-publish the BNP leaflet for you to see, for fear of prolonging the mischief, compounding the vitriol. I have met with the local Imam Khalil Ullah and offered support on behalf of the Swansea Quakers. He is clearly not minded to "retaliate". There is no doubt that the BNP leaflet was carefully drafted to target Muslims as Muslims, and there were no specific words of racial or ethnic hatred. Yet it seeped aggression and hatred from its every pore. It was designed to attack, to harass, and to make political capital out of harassment. This evil must be addressed. The Government must find a way of criminalising this form of incitement to hatred. Jerry Springer The Opera and Bezhti have further contributed to a sense of crisis about this issue, and Rowan Atkinson has chosen to join in. But liberal principles can be strictly preserved, given clear thinking and careful drafting - and the Government should press ahead. Do you have any experience of this awful corner of human society? Drop me a line
1055 17 January 2005 Conduct Unbecoming
The dismissal of bookseller Joe Gordon, from the Edinburgh branch of Waterstone’s, demonstrates the potential of the UN Universal Declaration of Human Rights. And for my new baby, Humanita! That is because the European Convention of Human Rights (now incorporated into UK law, by way of the 1998 Human Rights Act) is limited to the infringement of human rights only if the breach is committed by a “public authority”. Joe Gordon's human rights were infringed by his own "private" employer, Waterstones, because of comments about Waterstones in his own private blog The Woolamaloo Gazette . That means that under UK law he has no remedy for the human rights breach.Yet there can be no doubt that his human rights were infringed. To lose a much-loved job of 11-years’ standing, merely for the trenchant expression of opinion on a weblog is an outrage. Nor can there now be any reason for exempting “private” agencies from the abuse-of-power principles which govern public bodies. The 1948 UN Universal Declaration of Human Rights does not differentiate between private and public breaches – it merely focuses on the breach, seen from the individual’s viewpoint. Power abuse is power abuse, whoever is the abuser. And the large impersonal corporation is just as likely to infringe human rights as the large impersonal public authority. But as things stand, Waterstones’ breach does not give rise to any “human rights” claim in UK law. Joe Gordon must rely on a conventional breach of contract claim against Waterstones, without the assistance of human rights reasoning. And the outcome of such a claim is, regrettably, far from clear. The UK law of employment used to be called (even in my own early days in legal practice at the Bar) the Law of Master and Servant. It was more about status than contract. The status of the Master was impossibly dominant, that of the Servant impossibly subservient. And UK law still includes the pernicious feudal concept of a “duty of loyalty” – which Parliament has had to override, with its enactment of the Whistleblowers’ Charter.So if Joe Gordon appeals, the question for the Industrial Tribunal will be – “Was his action, in giving public expression to his occasional frustrations with employer, an act of disloyalty? If so, was it a sufficiently serious breach to justify dismissal?” Joe Gordon, at age 32 was still on a measly £12,000 p.a. He was no high-flying executive, carrying the flag for Waterstones as a corporation. In my own “corporate trade” as a professional Managing Director, it is true that I would not have criticised “my company” in public, whether on my blog or not: I would certainly have regarded that as for me, in my senior and well-paid position, an act of disloyalty. But Joe was in a quite different position: the company had not even issued any instructions limiting their employees’ freedom to blog. The man on the Clapham Omnibus could not possibly have thought less of Waterstones for having a fluent, literate, and occasionally critical employee like Joe Gordon – indeed the contrary, particularly for a bookshop. I confess, I might take a different view of an employee of the Bank of England, even if quite lowly. But Waterstones? On balance, No. My conclusion is that Joe Gordon would probably win, even without the support of human rights reasoning. But it is not a clear-cut case. And my advice to Joe in any event is not to challenge Waterstones: treat them with the contempt they deserve, and move on. Your value as a literate employee has been immeasurably enhanced by what has happened. Don’t allow yourself to be pinned-in to Tribunal proceedings for the next twelve months, skulking in the shadows of the past. The future has much more to offer - at well above £12,000 p.a. Have you ever suffered this kind of injustice? Drop me a line
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