Representing Hillsborough Police Officers – Why I am Taking Up the Challenge
Following on from the recent media reports about the planned police and IPCC investigations into the actions of the police in the Hillsborough tragedy, I thought it best to add my point of view before rumours get out otherwise of my intended involvement in the defence of police officers.
Mark George QC in his article for the Justice Gap http://thejusticegap.com/News/hillsborough-end-of-beginning-for-campaign-for-justice/
summarises the issues facing the investigators and I don’t disagree with anything he says. I do believe that the families of those involved in the tragedy deserve justice. However, I am always fearful of a knee jerk reaction where there is an instant attempt by the media and others to find someone to blame – and that blame has fallen squarely with the police.
I was asked a few weeks ago while I always feel the need to defend the indefensible. To which my answer was ‘there is no such thing as indefensible, everyone is entitled to a defence.’ However, it is true that I enjoy a challenge and if I have a choice will usually opt for representing the underdog, whether it be a football supporter who is classified as a hooligan by the public who do not even know the supporter, but has classified them purely due to the football team they support, or the person who finds themselves facing the death penalty despite the fact they were suffering from severe mental illness at the time of the killing. My blog on ‘How I defend Killers and Sleep at Night’ http://wp.me/p2vym0-4h explains my thinking on this point.
This leads me on to my willingness to represent police officers who are facing investigation under the new Hillsborough investigations. These investigations will be unprecedented, and some officers will face years of investigation, inquiry and litigation from IPCC investigations to police disciplinaries to inquests and criminal proceedings. In all of these, the officers have a right to a fair hearing. The question has to be asked, as to how fair those hearings will be when they are up against a police service which will want to make individual officers responsible rather than the Force, where the IPCC will be well aware that anything other than recommending action against the police will likely result in media assassination. Meanwhile, the Tomlinson trial, Plebgate, the Hillsborough inquiry, and the phone hacking inquiry has meant that the public perception of the police is at the lowest it has been for many years, in light of this will a police officer facing a jury trial be in a fair position?
I believe that there may have been officers who acted without integrity during the tragedy itself and afterwards, but in general these will have been the higher ranks who had more to lose. It is the lower ranking officers who now have the most to lose – reputation, pension, and at worse liberty. These officers are entitled, as any other defendant, to the best defence that they can get. Those of us at the Bar who have the experience of the IPCC, police disciplinary proceedings, inquests and criminal cases are in the best position to offer that defence. We are impartial, independent and should not be swayed by public opinion, will not be pressurised by the Police Forces concerned, or the Government. It is in situations such as this where the independent Bar comes into its own.
Many colleagues have raised the point that by openly stating my support for the defence of Hillsborough police officers, I may lose my other client bases, those who bring actions against the police, those charged with serious criminal offences, and football fans who feel they are wrongly stigmatised by the police as hooligans. My response to this – I have represented police officers and others for years. It is my knowledge and experience that draws in my clients and not my affiliations (of which I have none other than to ensure that everyone has a fair trial). It is this broad stretch of work that ensures that I have in-depth knowledge of the criminal justice system, what I learn from representing police officers I can then use when bringing actions against the police, what I learn from representing those who are charged with criminal offences helps me when representing police officers.
A few years ago, while acting as a Prosecutor, I had a confrontation with a police officer during a debrief, in which I threatened to nail his shoulders to the wall if he shrugged at me once more. Obviously my comment did not go down well with him, and we spent the next few years avoiding each other, until he was facing disciplinary proceedings and he called me. When I asked why he wanted me to represent him when we clearly did not have a good relationship, he replied that as I had the guts to take him on in front of a room full of officers he felt I had the guts to see his case through and fight for him. And he was right, our past history did not matter, and I would hope that all my past and future clients feel the same, I don’t have to like them or what they stand for, and the same applies to their thoughts on me….what matters most is that they receive a fair trial or hearing and that the outcome is fair.
“Hey Apprentice – You’re Fired”
We have all seen Alan Sugar point his finger at a potential apprentice and while telling them ‘You’re fired”. In that single finger point, a contestant’s hope of getting a £100,000 salary goes up in smoke.
The only similarity between this reality TV and a real apprentice is the name. Real apprentices usually receive a low age in return for learning a trade. This apprenticeship period lasts for one to four years and the apprentice has to work over 16 hours a week and is usually also required to attend college.
Over the past few months I have received complaints from apprentices who:-
- have been paid less than the apprentice minimum hourly wage, in some cases as little as £25 per week for working 40 hours;
- have not been paid for their hours at college;
- have been told that their tips are their wages;
- have been denied any holiday leave;
- have been denied time off to attend college;
- have been told that they have to pay for their college course and that this is to be taken out of their wages;
- have been forced to work 60 hour weeks;
- have been fired due to being pregnant;
- have been sacked for complaining about health and safety issues;
- have been sacked because they have reached the age of 19 and will be entitled to a higher minimum hourly rate.
All of these actions have been unlawful action by the employer, some have been resolved by negotiation with the employer, but sadly others have resulted in a claim being made to the employment tribunal.
The summary below is not a definitive list of an apprentice’s rights, but it should help an apprentice to consider whether they are being treated properly by their employer.
What rights do apprentices have?
Many employment law protections do not apply to apprentices, especially if they are in their first year of employment, however it is important to note that an apprentice does still have employment rights, and the fact that most apprentices are young means it is essential that these rights are protected so as to prevent exploitation of young apprentices.
What is the minimum wage an apprentice should receive?
The National Minimum Wage regulates how much a person is paid per hour. For apprentices under the age of 19 there is a special apprentice minimum wage which is £2.60 per hour, an apprentice aged 19 to 20 (who has completed at least a year of their apprenticeship) is entitled to the National Minimum Wage of £4.98 per hour, aged 21 and over this rate jumps to £6.08 per hour. Out of this rate, deductions can be made by an employer for National Insurance and tax, but the cost of the college course should not be deducted from these rates.
Should an apprentice be paid for the hours spent at college?
Anyone on a registered apprenticeship which has a college study requirement should be paid for the hours which they are studying at college, even if this is an evening class. Hence if the apprenticeship course require one day attendance at college each week, and the college day last 6 hours, the apprentice should be paid for those 6 hours – although lunch and any other breaks do not have to be paid.
What is the maximum number of hours an apprentice should work per week?
The maximum 48 hour working week applies to apprentices, and includes the hours spent at college, if college is a requirement of the apprenticeship. However, the 48 hour rule is not quite so clear cut. The employer can decide to take a period of weeks and add up the total number of hours work and then divide by the number of weeks. So long as this figure shows that overall the apprentice has worked 48 hours or less, the employer has not breached the rules on maximum working hours.
What other rights does an apprentice have?
Every apprentice should be provided with a contract of employment, which includes their rate of pay, their holiday allowance (which must be at least 20 days plus bank holidays), their right to sick pay at least at the statutory rate, and right to maternity leave (at least 39 weeks paid at the statutory rate, but up to 52 weeks – the period between 39 and 52 weeks may be unpaid).
An apprentice who has worked for more than a year with an employer and who has been dismissed, has the right to bring a claim in the employment tribunal for unfair dismissal. In cases where an apprentice has a complaint that they have been discriminated against, or have suffered a detriment as a result of whistleblowing (such as making a complaint that the employer is breaking the law or breaching health and safety) there is no need to have been employed for a year before bringing a complaint in the employment tribunal.
What should an apprentice do it they feel they are not being treated fairly?
It is possible to bring a claim in the employment tribunal, but this should be a last resort. Any apprentice who is at the stage where they feel that they need to bring a complaint in the employment tribunal will have to accept that their relationship with their employer has completely broken down. Especially if the employer is a small employer, an apprentice should usually not involve the employment tribunal unless they have been dismissed or have resigned.
The first step, for any apprentice who feels that their employment rights are not being complied with, is to seek legal advice. Many Law Centres, Citizens Advice Bureaux and local advice agencies have employment advisors who will be able to provide initial advice. Likewise some lawyers will provide 30 minutes of free legal advice, and this may be a sufficient amount of time to find out if a complaint is valid. Before visiting any of these for advice, it is essential to compile all the relevant documents such as pay slips, employment contract, any letters from an employer relating to employment rights.
If the initial assessment is that the employment rights have possibly been breached, the next step is raise the subject with the employer. An apprentice should try and talk to their employer and air their complaint (this is usually called submitting a grievance). It may be that the employer is unaware of the apprentices employment rights, particularly if the employer is a small one. During these discussions, an apprentice should try to be reasonable, allowing the employer time to respond to the complaints. Shouting or threatening to sue will not help the employment relationship and will not usually help to resolve the problem.
If an employer is unaware of the apprentices rights, they may require a few days to look into the complaint. An apprentice should not expect that just because they have told their employer that they have looked into their rights, that the employer will take this explanation without checking it out for themselves. If, after a few days, the apprentice is unsatisfied with the employers response, it is wise to ask a relative or friend to make contact with the employer. It may be easier for both the employer and the apprentice if someone else is involved, but again the person intervening on the apprentices behalf should act reasonably towards the employer. It may be that the employer asks for a meeting (usually known as a grievance meeting) with the apprentice to discuss the complaint. If the employer is a large organisation, it is standard practice to allow a work colleague to accompany the apprentice into the meeting to support the apprentice, but if the employer is small, such as a sole trader, the apprentice should request that they be accompanied by a friend or a relative for support.
After trying to talk it though, if the apprentice is still not satisfied that the complaint is resolved, they can request another meeting with the organisation which provided advice on their employment rights, and ask that they write to the employer setting out the apprentices employment law rights. In my experience, such a letter will often do the trick and if the employer is not complying with the apprentices employment law rights they will realise their error and rectify it.
Bringing a claim in the employment tribunal
Only once an apprentice has done all of this should they consider bringing a claim in the employment tribunal. The claim must be submitted within three months of the final action by the employer. For example, if they have been denied holiday pay, they must bring a claim within 3 months of the date on which the holiday should have been paid. As I stated above, if an apprentice has reached this stage, then the relationship with the employer will have broken down, although the apprentice does not have to have been dismissed to submit a claim.
The claim for to the employment tribunal should contain as much information as possible about the complaint, and it is at this stage that it is often advisable to consult an employment lawyer as it is important to get the claim right. It is also important to check that the employment tribunal is the best place for the claim, as some claims are better suited to the county court.
Apprentices should be aware of their rights and not be afraid to ask that they are enforced by their employer, the fact that they are an apprentice does not mean that they should be exploited, but the apprentice should be aware that in general, resolving the problem without going to the employment tribunal will make good business sense for everyone involved and create a much better working relationship, allowing the apprentice to concentrate on their career rather than a long, drawn out legal case. Challenging Sir Alan Sugar and bringing a case to tribunal may be exciting on TV but in real life it is quite the opposite.
I will accept queries from apprentices who do not have access to a local law centre or advice agency. All queries should be sent as a DM via Twitter or by using the contact page at http://www.alisongurden.com
A witness statement is an essential part of the Employment Tribunal case as it is the witness’s account of events. For this reason, a great deal of time should be spent in preparation of the statement.
Although the statement is the witness’s account of events, it should only contain the information which is relevant to the case. The tribunal may ask the witness to read their statement during the tribunal hearing, so it must be in plain language which is clear and understandable, and written in such a way that it follows a logical order. If this guidance is not followed, then the witness’s evidence in the tribunal will be very difficult to understand. Alternatively, the tribunal may decided to read the witness statement prior to the hearing commencing, for this reason it must contain all the relevant information, as it may not be possible to clarify or expand points raised in the statement.
There are no hard and fast rules about what information should be included in the statement, it all depends on the particular circumstances of the witness. However, every statement should start with the name of the witness, their address, or where they work, and their role (such as employer, employee, friend of the complainant etc.) The statement should be written in short paragraphs, which should be numbered, and if possible, events mentioned in the statement, which relate to documents in the case bundle, should identify the relevant pages of the bundle. For Example “I was employed as a cleaner with the respondent from March 2006 to December 2010. (See the contract of employment, page 4 of the bundle.)”. The reason for referencing the pages in the bundle is to aid both the witness and the tribunal in finding the pages quickly and easily when the witness is giving their evidence during the hearing.
The statement should also be signed and dated. If copies of the statement are being exchanged electronically with the other parties to the case (simultaneous email exchange is now common) the statement should be dated, but does not have to be signed, so long as signed copies are provided to the tribunal on the day of the hearing.
Once the statements have been exchanged, they cannot be changed, hence the reason it is so important to spend the time on the statement and get it right. If a witness wants to amend their statement, it should be done by way of an additional statement, but it is at the discretion of the tribunal as to whether they will accept the additional statement.
The person making the complaint to the tribunal is referred to as ‘the Complainant’. The Employer is referred to as ‘the Respondent’. Unless a person can give direct evidence of the events complained of, they should not be a witness. For example, the Complainant should not ask their friend to be a witness if the friend does not have direct knowledge of the Complainant’s dismissal. The Tribunal cannot take into account the fact that the Complainant spoke to their friend and told them about the dismissal. However, if the friend was present when the complainant was dismissed, or had witnessed events previously which relate to the dismissal, such as accompanying the Complainant to a disciplinary hearing, the witness can give evidence on this event. Likewise the Respondent witnesses should have some knowledge of the Complainant or the Complainant’s case, the fact that they are employees of the respondent is not sufficient for them to be called as a witness.
The rule of thumb is that the fewer witnesses, the better. Too many witnesses can cause confusion. And the simpler the statement, the better.