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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hussain v. HM Prison Service [2002] UKEAT 1250_00_0805 (8 May 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1250_00_0805.html Cite as: [2002] UKEAT 1250__805, [2002] Emp LR 874, [2002] UKEAT 1250_00_0805

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APPEARANCES

 

For the Appellant	MR ANTHONY KORN (of Counsel) Instructed by: Messrs Lees Lloyd Whitley Solicitors 6th Floor Castle Chambers 43 Castle Street Liverpool L2 9TJ
For the Respondent	MISS RUTH DOWNING (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 The Broadway London SW1H 9JS


 


MR JUSTICE LINDSAY (PRESIDENT):

1. It was argued at the Tribunal below that the Prison Service was liable for failing adequately to protect one of its employees from racial abuse directed at him by inmates of the prison in which he served. The Employment Tribunal at Reading held that the Prison Service, sought to be made liable under section 4 (2) (c) of the Race Relations Act 1976, was not so liable. The employee, Mr Hussain, appeals.

Section 4 (2) provides:-

"4. Discrimination against applicants and employees

(1) .........

(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -

a) in the terms of employment which he affords him; or

b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

c) by dismissing him, or subjecting him to any other detriment."

2. Mr Hussain, of Pakistani descent, joined the Prison Service in 1995. Whilst serving at Wormwood Scrubs he was charged, with others, with alleged offences of assault on prisoners there. In April 1998 he had, whilst still awaiting trial for those offences, transferred to Bullingdon Prison. He served on "B" Wing. The inmates knew that he was facing trial. He was the only officer at Bullingdon from an ethnic minority.
3. On 5th May 1998 prisoner C called him a "Paki". Mr Hussain reported that to his Line Manager but himself warned C and obtained an apology. He told C that if such behaviour was repeated he would be put on report and would be brought before the Governor.
4. On 6th May 1998 C alleged that he had been assaulted, the day before, by Mr Hussain. The matter was investigated under the prison's Code of Discipline. There were investigations including interviews of both C and Mr Hussain. The complaint was dismissed, but not until June.
5. Mr Hussain was aware that rumours were spreading amongst prisoners about his involvement in the alleged offences at Wormwood Scrubs and on 13th May 1998 he asked if C could be moved from the wing in which he, Mr Hussain, served. He felt that he was being intimidated. The residential Governor of B Wing declined to move C.
6. On 14th May 1998 Mr Hussain was threatened by C. The matter was reported to the Governor and C was sentenced to a loss of 10 days' remission, 7 days' loss of earnings and 7 days' forfeiture of canteen privileges. Mr Hussain again asked that C should be moved but the Residential Governor for B Wing again declined to move him, though he suggested that Mr Hussain might himself wish to move to another wing. The Residential Governor explained to the Tribunal that he had not moved C as C's allegation against Mr Hussain of 6th May 1998 was then still under investigation and for C to be moved could inflame the situation as looking as if C was being punished even before the verdict.
7. On 19th May 1998 Mr Hussain had a meeting with another Residential Governor and expressed fears for his personal safety. He was advised to complete a "Racial Incident Form" and was told the matter would be discussed by management.
8. On 21st May 1998 a number of inmates whom he was unable clearly to identify shouted abuse at Mr Hussain. It is not said whether it was racial abuse. He sent a Memo to the Governor of the prison. He asked that the matters be taken seriously. He was, he said, left more at risk of intimidation and racial abuse from prisoners because of the investigation of his earlier conduct at Wormwood Scrubs. He was interviewed by the Director of Throughcare, who gave verbal advice and support.
9. In June 1998 Mr Hussain transferred to different duties. There was for a time little opportunity for him to be given racial abuse. What was referred to as the first spell of abuse ended.
10. Later, after he returned to serve on B Wing, a second spell began. On 2nd February 1999 two prisoners, V and N, shouted abuse at him, adding "We know what you have done in the Scrubs". Those inmates, in a sit-down protest with others, refused to obey a direct order from other Prison Officers to return to their cells and were placed on report. Mr Hussain completed a report form about the incident, including complaint about racial abuse. He did not give the form to the Senior Officer till the next morning, 3rd February, and it did not reach the Governor conducting the adjudication until after it had begun at 10 a.m. on 3rd February. The Governor took the view that it was not possible to include new charges in the adjudication and suggested, instead, that Mr Hussain should complete a Racial Incident Form and forward it to the Race Relations Liaison Officer. The Tribunal were, it would seem, unimpressed by Mr Hussain's stated reasons for not completing his report form earlier, on the very day of the incident. V and N denied racial abuse; they were warned that if it did occur they would face disciplinary action.
11. On 10th February 1999 prisoner R, whilst being searched by Mr Hussain, made a threatening remark to him. It was not of a racial nature but included reference to Mr Hussain's then still-pending trial for alleged conduct whilst he had been at Wormwood Scrubs.
12. On 18th February 1999 two prisoners, sex offenders, became involved in a fight. A number of officers, including Mr Hussain, escorted them back to their cells. The prisoners shouted racial abuse at Mr Hussain. No action was taken. The Prison Service's explanation was that the situation had been confused and volatile with the officers primarily concerned with stopping the fight and defusing the situation rather than noting racial or other abuse.
13. On 19th February prisoner N (whom, it will be remembered, was involved in the incident of 2nd February 1999) was put on report by another Prison Officer for abusing Mr Hussain. N was sentenced to forfeiture of 5 days' remission, 5 days' stoppage of earnings, 5 days' forfeiture of privileges and 3 days' forfeiture of association. It is notable, firstly, that Mr Hussain was receiving support from a fellow-officer, the one who had put N on report; secondly, that N was abusive in racial terms despite the warning given him after the earlier incident and, thirdly, that punishment which we have no reason to think to have been trivial was meted out to the offender.
14. On 3rd March R (who had been involved with Mr Hussain on 10th February) was placed on report for abusing Mr Hussain (though not in racist terms). R was sentenced to 5 days' loss of privileges, 7 days' loss of half his earnings and 7 days' forfeiture of privileges.
15. On 10th April 1999, unknown to Mr Hussain at the time, prisoner C, who had been involved in the incidents of 5th May, 6th May and 14th May 1998 and who had been punished on 19th May 1998, had inquired of other officers where Mr Hussain lived, adding that on his release he would be remaining in the Oxford area so that "he would kill the Paki bastard when he ran into him". Management did not report this incident to Mr Hussain, who complained of that omission.
16. That completes the incidents of abuse but there was one further incident found by the Tribunal, of quite a different character. On 18th May 1998 Mr Hussain had applied to go on an Equal Opportunities course to be held between 7th and 18th September 1998. His application was duly supported but he received a letter saying the course was full. Later he learned of a white female officer who had not applied to go on the course, she instead being told she was to attend it. As the Tribunal put it:-

"He was concerned that, as an Asian officer who had applied to attend the course, he had apparently been refused in favour of a white officer who had not applied."

The Prison Service explained why that was so but Mr Hussain found the explanation unsatisfactory.

17. On 19th April 1999 he lodged an IT1 for Racial Discrimination under section 4 (2) (b) (access to opportunities etc.) and section 4 (2) (c) (subjecting him to any other detriment) of the 1976 Act. He complained of acts on and after 2nd February 1999, namely those within the second spell. The Prison Service, he said, had taken no decisive permanent action to bring to an end or lessen the effect on him of a systematic campaign of abuse and threats by certain inmates of the prison.
18. The Prison Service in its IT3 responded in some detail and denied that it had failed to support Mr Hussain.
19. The hearing took place at the Tribunal at Reading over 5 days between 25th January and 13th July 2000 and the Tribunal met between themselves on 28th July. Mr Hussain was represented, as he was before us, by Mr Korn; the Prison service was represented then by Mr Gill Q.C. (and before us by Mrs Downing). On 24th August 2000 the majority decision of the Tribunal, under the Chairmanship of Mr J.G. Hollow, was sent to the parties; it was that Mr Hussain's application failed and was dismissed. On 29th September 2000 the Employment Appeal Tribunal received a Notice of Appeal from Mr Hussain. It raises 7 grounds of appeal although in oral argument Mr Korn compressed his argument into 5 issues. It will be convenient to use those as headings.

1. The relevance of motive.

20. Burton and Anor -v- de Vere Hotel Co. [1997] ICR 1 EAT (the well-known Bernard Manning case) at p. 7, speaking of the Tribunal in that case, whose decision the Employment Appeal Tribunal overturned, said:-

"In effect they required the employees to show that the employers were themselves affected by racial bias or animus. That is not necessary: see Reg -v- Birmingham City Council, ex parte Equal Opportunities Commission [1989] A.C. 115, which is clear authority for the proposition that it is not necessary for an applicant to show that the discriminator had any intention or motive to discriminate."

That proposition is not in dispute before us. However, in its paragraph 26 the Tribunal did refer to motive. The Extended Reasons say:-

"The majority view is that even if the applicant had been subjected to a detriment we would not infer the necessary causative link between the applicant's race and any detriment. Quite plainly, the abuse the applicant suffered was racial and the inmates perpetrating it were racially motivated. The question here is whether the respondents were racially motivated in failing, as the applicant says they did, to control and prevent it. It is a question of the inference to be drawn from the facts as established. The majority view is that despite our criticisms of PSO 2800, the Action Plans and their inadequate promulgation [subjects we shall need to return to] it would not be appropriate to draw the inference."

Mr Korn also refers us to the Tribunal's paragraph 22 where they say:-

"It is undeniable that the applicant suffered abuse at the hands of a number of inmates, but the essential question for us is whether [the Prison Service] had taken adequate steps to protect him, both by making it clear to inmates that abuse would not be tolerated and taking effective action when it occurred by punishing the culprits and supporting and counselling the applicant. If they had not done so, was this failure attributable to the applicant's race, i.e., was there the necessary causal link?"

There is obvious force in Mr Korn's submission that the Tribunal was looking for the existence of a racial motive in the alleged discrimination as not merely relevant but necessary were they to have found Mr Hussain to have been subjected to a "detriment" within section 4 (2) (c) and if their conclusion was to be that there had been unlawful discrimination on the part of the Prison Service. That would have been in error of law but it is easy to be critical without bearing in mind the somewhat loose references to race which both sides' arguments, as the Tribunal understood them, had included. Mr Hussain's case, as so understood below, had been that he had been refused a place on the course "because of his race"; that the Prison Service had failed to take adequate steps to protect him for a reason "attributable to the applicant's race", that prisoner C should have been moved to a different wing and that the cause of the detriment Mr Hussain suffered on C not being so moved was attributable to his race. Equally, for the Prison Service below, Mr Gill Q.C. had argued that if there had been any detriment which Mr Hussain had suffered, it was not attributable to his race. Against that background it is unsurprising that the Tribunal dealt with racial motive as they did but the reason why the error of law which the Tribunal veered towards does not, in the outcome, assist Mr Hussain is that the Tribunal held racial motive as necessary only in a context in which they were supposing that they had found there to be a section 4 (2) (c) detriment. But they never found such a detriment. The error did not infect other parts of their decision and hence, if the other parts stand, the Tribunal's error is left as immaterial.

2. The relevance of PSO 2800

21. In May 1997 the Prison Service issued a Prison Service Order on Race Relations. It was PSO 2800. It was not explained to us under what, if any, primary or secondary legislation or other authority it was issued. There is no suggestion in the Tribunal's reasons that performance of it was, by legislative provision, mandatory for all prisons or for Bullingdon, though parts of it, it says, require performance in all prisons. Its foreword is signed by the then-current Director General of the Prison Service. Parts of it - printed in italics - are described as mandatory "as a matter of law or Prison Service policy". Of it the Tribunal said:-

"This was a lengthy document, which set out the legal obligations for the Prison service and its policy, including definitions of discrimination, harassment, racial hatred, etc.. It set out a number of objectives in terms of management structures, performance and ethnic monitoring together with provision for review, recording, and investigation of complaints of racial incidents including referral to the police for consideration of prosecution in serious cases. We are satisfied that although this document was available within the prison its existence was not widely known to the officers, or, in particular, to inmates."

The Tribunal held that PSO 2800 had been inadequately promulgated but they added that it in any event it "did not focus clearly and sharply on the risk of abuse of staff by prisoners". The Tribunal was critical of the Prison Service as to the content and promulgation of the Service's Racial Awareness Policy.

PSO 2800 was unmentioned in the IT1 and IT3 and there is no finding by the Tribunal that any particular officer having any rôle in this case did not know of PSO 2800 or that senior officers generally did not. Nor does the Tribunal, by way of findings of fact, give any examples of how wider knowledge of it would have tended to ameliorate Mr Hussain's treatment either at the hands of the Prison Service or of prisoners. The only passage in it drawn to our attention as specifically directed to the behaviour of prisoners was that at its 2.14.1, where one finds:-

"Prisoners also have obligations and are expected to act in a proper manner."

Neither we nor, as it would seem, the Tribunal below, was referred to any legislative provision which specifically required PSO 2800, its terms, or their performance or not to be taken into account in cases such as Mr Hussain's. Mr Korn argued that it was discriminatory in itself of the Prison Service not to take all steps to implement PSO 2800. That we cannot accept. Whether a respondent has a Race Discrimination Code or not, or, if he has, what it provides and, if he has, whether he performs or fails to perform its provisions are all matters which can properly be weighed up by a Tribunal as part of its overall assessment of all surrounding circumstances but it is likely that only in exceptional circumstances will a failure wholly to implement one particular unstatutory code be, as such, itself determinative. Whether a respondent performs his own code (but it is one falling short of the requirements of the law) or fails to perform his own code (but it is one more demanding than the law), the requirement to be honoured if liability is to be escaped by him is that not of such code but of the law.

That the Tribunal had PSO 2800 in mind and shortcomings in mind in relation to its promulgation and performance is clear; there are repeated reference to those factors. As they were not in themselves determinative the weight to be attached to those shortcomings was a matter for the Tribunal. We see no error of law in the Tribunal's view that they were relevant but not compelling.

22. A factor in PSO 2800 being so treated was that Bullingdon had its own Race Relations Service Order and Action Plans for 1998/99 and 1999/00. It was there provided that it was the responsibility of every member of the staff to ensure that the department's policy of racial equality was carried out in relation to other members of staff as well as prisoners. Within the prison, held the Tribunal:-

"..... a notice was exhibited in the wing from Deputy Governor Luke Serjeant dated 21 April 1999. It stated that "It has been reported that prisoners and staff have been abusive through cell windows towards staff members and other prisoners. Abuse of any kind will not be tolerated within this prison". It then went on to ask staff to identify those responsible and say that action including disciplinary action would be taken against those responsible."

The Tribunal mention that that notice did not refer to racial abuse by prisoners to staff but if the notice had had to stoop to particulars then unless it specified all categories of abuse to and from staff and prisoners it would be criticised for its omissions, and yet if it included all categories it could well have had less force than the straightforward provision that abuse of any kind would not be tolerated. We find it impossible to think that anyone in the case would or might have behaved differently to Mr Hussain's advantage if only that blanket stated intolerance of abuse had been phrased to refer specifically to racial abuse.

23. We find no error of law in the Tribunal's dealing with PSO 2800, especially given its findings as to Bullingdon's own code. In particular, and contrary to one of Mr Korn's submissions, we do not see that the Tribunal failed the well-known Meek v City of Birmingham test in failing to explain more fully why the Service's failure to promulgate and fully to perform every aspect of PSO 2800 had not led to a victory by Mr Hussain; the combination of promulgation and performance of such-like codes not being determinative and the Tribunal's reference to Bullingdon's own separate provisions in the case made it unnecessary to spell matters out further than it did.

3. The Burton Test

24. In Burton -v- de Vere Hotel Co. supra the Respondent Hotel Company knew that the speaker at the evening event would be a comedian likely to make sexually explicit jokes. Amongst the staff engaged by the Company were 2 black waitresses. As they cleared the tables they heard the comedian use offensive racist words and explicit sexual-cum-racist jokes and remarks, some directed at them. Probably encouraged by that, after the comedian's act was over, each waitress was treated by a guest in a grossly offensive and racist manner. No guest was ejected. Proceedings are not mentioned as having been brought against the comedian or the offensive guests or the hotel's managers or supervisors but against only the Hotel Company. The Employment Appeal Tribunal, reversing the Employment Tribunal, held the Company to have discriminated against the waitresses, its employees, by subjecting each to a detriment within section 4 (2) (c) of the Act. The relevant meaning of the verb "to subject" in the Shorter OED is "to lay open or expose to the incidence, occurrence or infliction of ...". The significance of the case, of course, lay in the Hotel Company being found liable not for its own racist acts or, vicariously, for racist acts of its employees attributed to it as if done by it under section 32, but for the racist acts of strangers to the Company, namely the comedian and the offensive guests. As we read it, the EAT's judgment prepared by Smith J. makes the following points on pages 9-10:-

(i) The statutory test that is section 4 (2) (c) is best understood by consideration of the words "by subjecting him to";

(ii) That connotes "control"; a person "subjects" another to something if he causes or allows that thing to happen in circumstances where he can control whether it happens or not;

(iii) No particular degree of foresight on the employer's part has to be established and it is undesirable to import concepts of the law of negligence into the statutory tort of racial discrimination;

(iv) Lack of possible foresight or the unexpected nature of the event complained of may, though, be relevant to the question of whether the employer could "control" the event in the sense of that word as within (ii) above;

(v) That the employer could foresee the abuse would not necessarily mean that he could control it; a bus company might, for example, foresee, but be unable largely to control, abuse from passengers to its conductors;

(vi) Conversely, an event was not necessarily beyond the employer's control just because it was unexpected;

(vii) The question, in a 3rd party case such as Burton, of whether the employer had subjected his employee to racial harassment, was to be decided by the Tribunal in its capacity as an industrial jury;

(viii) The Tribunal had to ask itself "whether the event in question was something which was sufficiently under the control of the employer that he could, by the application of good employment practice, have prevented the harassment or reduced the extent of it" - p. 10 f.

On the facts in Burton the Hotel Company fell short of good employment practice; it was good employment practice for management to warn assistants, where an artist known to be likely be offensive was to perform, to keep an eye out and withdraw the waitresses if things became unpleasant. Although the events in the hall were within control of the assistants, that was not done and accordingly the EAT held that the Hotel Company had "subjected" the waitresses to racial harassment.

25. Burton may in parts be vulnerable; it pays little attention, arguably, to the comparative, to whether the employer had on racial grounds treated the waitresses less favourably than he would have treated others for the purposes of section 1 (1) (a) of the Act. Without that, then even had there been the "subjection" to a "detriment" within section 4 (2) (a) there would have been no unlawful discrimination. That was overcome by reference to Porcelli -v- Strathclyde Regional Council [1986] ICR 534, but that was a case where the employer was vicariously liable for unfavourable treatment. The treatment there, to use the jargon, was sex specific and was treatment required to be considered as if done by the employer. That being so, there was no need to look in a comparative way as to how others might be treated. Whilst the prisoners' abuse of Mr Hussain was "race-specific" it cannot be directly attributable to the Prison Service and it is arguably less obvious that what the Service was accused of, a failure adequately to exert due control to prevent or reduce threats and abuse, was race specific. Moreover, in Pearce -v- Governing Body of Mayfield Secondary School [2001] IRLR 669 C.A. Judge L.J., in a passage which attracted the agreement of Henry L.J., included within his survey of Burton a passage as follows at para 60, page 677:-

"Unless the single word "control" is treated as providing a convenient shorthand way of expressing a very complex issue, its use in this case as if it were a form of definition, having virtually statutory application, is liable to mislead."

26. However, we leave such issues to other cases; in the case before us no question was raised as to the satisfaction or not of section 1 (1) (a) and Mrs Downing was content to proceed on the basis that items (vii) and (viii) supra of Burton were the appropriate test to be applied in the context we are dealing with. It is that test that Mr Korn says the Tribunal misunderstood and misapplied but which Mrs Downing says was adequately considered.
27. First Mr Korn refers to Canniffe -v- East Riding of Yorkshire Council [2000] IRLR 595 EAT, reported only after the hearing at the Tribunal below had concluded. It does not assist us as it dealt with whether the employer had made good the defence to vicarious liability for the actions of an employee set out in section 41 (3) of the Sex Discrimination Act 1975, the language of which prescribes a test quite unlike the Burton test with the latter's reference to "control" and to good employment practice. It is no surprise that Burton was not even referred to in Canniffe.
28. Next Mr Korn referred to Pearce supra, which was concerned with the employer's responsibility as the Governing Body of a school for the gender-specific homophobic verbal abuse directed by pupils at the School against a female teacher. Hale L.J. in her paragraph 40 at page 675, whilst recognising that it was not as if the School had done nothing to remedy the situation, held, given the Employment Tribunal's findings of fact, that insufficient steps had been taken to control the pupils' behaviour. As we have already seen, Judge and Henry L.J.J. approached the word "control" in the Burton test with caution. It cannot be said that as a matter of ratio Pearce supplants or qualifies the Burton test so as to require more of the employer but it is notable that the Court of Appeal at several points refers to practicabilities; if the School had done more would the pupils' treatment of the teacher-employee have in fact improved - para 39; if there was a perception that employee-victims would not be protected, a perception growing out of specific abusive incidents not being met with punishment, would such incidents increase - para 40; would changing the class which the Teacher taught have brought the nastiness to an end - para 61 - and might not steps intended to be remedial have exacerbated the teacher's position - para 61? Moreover Pearce underlines, by way of the judgments of Judge and Henry L.J.J. that the import of "control" will vary from context to context.
29. Mr Korn then referred us to Bennett -v- Essex County Council and Ors unreported EAT/1447/98, 5th October 1999. There, faced with a complaint that the employer had not done enough in and only in 1995 (see para 12) to protect its employee from third-party abuse (to a black female teacher from pupils), the Employment Tribunal relied, in determining that the employer had done enough, on the appropriate way the employer had acted in 1996. The EAT set that decision aside. The case has no parallel with ours.
30. The test, on the argument before it, thus being no more or less than the Burton test as we have set it out above, did the Tribunal duly understand it?
31. The case was cited to them and is mentioned in their reasons. They said they had borne it very much in mind, including, they said, in particular, the passage we have summarised in our para 24 (ii) - (vii) above. At various points the Tribunal uses slightly differing terms; had the Prison Service taken adequate steps to protect Mr Hussain, were its reasons for not taking particular identified steps satisfactory, did the Service fail adequately to control and prevent abuse; did it take as much action as was reasonable in all the circumstances, given that it was doubtful that any system could be expected to guarantee total freedom from racial abuse? The Tribunal in its para 25 said:-

"The majority view is that having regard to the nature of the environment in which [Mr Hussain] was working and the fact that abuse could not be eliminated entirely, this did not amount to a detriment in so far as it was something which the respondents could not wholly control."

Mr Korn rightly argues that the Burton test is not as to whether the employer could "wholly control" or entirely eliminate the abuse in issue and that reduction of it, too, required consideration but in their very next sentence the Tribunal spoke of action "to try and control a difficult problem", "control", of course, being the very word Burton uses.

Mr Korn also argues that in that next sentence the Tribunal erred in its understanding of the Burton test when it said:-

"Notwithstanding our remarks as to the racial policy and its promulgation, we were satisfied that the action taken was reasonable in all the circumstances to try and control a difficult problem."

The reasonableness alone of the action, says Mr Korn, is not the test. We see the force of that but not that it assists him. The Burton test looks only to the deployment of "good employment practice" to prevent or reduce the third-party activity complained of. Good employment practice is unlikely, as it seems to us, to include actions beyond ones which were, in context, reasonable but, conversely, reasonable action to try and control might involve actions going beyond what was likely to be done by even good employers as such. The test the Tribunal was applying was, if anything, more generous to Mr Hussain than it need have been and, looking overall at the Tribunal's approach, we do not see any such misunderstanding or mis-statement of the Burton test as might assist the appellant.

32. It is true that the Tribunal takes it that the failure of Mr Hussain to satisfy it that there was a breach of the Burton test led to a conclusion that, within the meaning of "or subjecting him to any other detriment" in section 4 (2) (c), there was no "detriment". We would prefer to regard that, instead, as a case where, even assuming a "detriment", the complainant had not been "subjected to" it by his employer. Given the wide meaning given to "detriment" - see Jeremiah -v- Ministry of Defence [1979] IRLR 436 C.A. at paras 22 and 47 - that would seem to us the right analysis but whether one is unable to find a "detriment" or a "subjection", the result is the same and hence no material point of law arises on this particular account.

4. Application of the Burton Test

33. As for application of the test, it has to be borne in mind that the abusive prisoners were persons who, ex hypothesi, were such as acted unconstrained by the law or by the ordinary requirements of civil behaviour and who, at least in the past, were undeterred by the chance of punishment. Prisoners C and N acted abusively notwithstanding earlier warning. Prisoner C repeated offence despite earlier punishment and Prisoners C, N and R were all punished by the Prison Service.

Mr Korn rightly says that whilst the Tribunal noted that he had submitted that the criminal prosecution of the inmates concerned or requiring them to attend Racial Awareness courses were appropriate steps that had not been taken, the Tribunal failed expressly to deal with those possible steps. However, it is no necessary part of a Tribunal's task expressly to deal with every possible remedial step which, after the event, can be seen both not to have been done and which conceivably could have affected the behaviour complained of. That the Tribunal was satisfied that the action taken was reasonable in all the circumstances was shorthand for a conclusion that other suggested possible action was beyond what was reasonable or was unlikely to have been effective. Nor, in the absence of Chairman's Notes of Evidence, are we able to say that on the evidence the possible utility of the criminal prosecution of, or the availability of racial awareness courses for, the particular prisoners, were such steps as had to be regarded as requiring to be considered or taken under the Burton test.

On many other more important subjects - the failure to move Prisoner C to another wing, the failure to charge prisoners V and N as to racial abuse on 2nd February 1999, as to the fighting on the 18th February 1999 including racial abuse that was not followed up and as to the failure to put Mr Hussain on the Equal Opportunities Course, the Tribunal made express findings in effect exonerating the Prison Service and we have no reason to think that if the Tribunal had not intended criminal prosecution and racial awareness training to be adequately comprehended within their blanket conclusion that the Prison Service had taken reasonable action they would have said so. One does not prove a breach of the Meek -v- City of Birmingham test in a Burton type of case by lighting on "control" steps not of obvious likely efficacy and as to which the evidence as to their efficacy or the reasons for their non-adoption is not available by then saying that, despite a comprehensive finding as to reasonable steps having been taken, there was no express findings as to those particular steps.

34. Mr Korn complains, too, that, whilst he would accept, in the particular circumstances of a prison and prisoners, that it might be too much to expect any permissible steps altogether to have prevented the treatment which Mr Hussain received, the Tribunal failed to look at whether it could readily enough have been reduced or minimised. We do not accept that; more than once the Tribunal uses the phrase "control and prevent" in relation to the Prison Service. In context the word "control" contemplated or included reduction of the abuse. It cannot be said they failed to have reduction in mind.
35. As the Burton test requires, the Tribunal, as "the Industrial Jury", looked into whether Mr Hussain had been subjected to the detriment alleged and held on the evidence that he had not. We see no error of law under this heading.

5. Perversity

36. We have not been able to discern perversity on the face of the Tribunal decision and no findings of those classes of perversity which consist of there having been findings of fact unsupported by the evidence or the overlooking of uncontested evidence are possible in the absence of Chairman's Notes of Evidence. In particular, one cannot jump from the Prison Service's failure at Bullingdon to adopt and distribute PSO 2800 to a conclusion that that omission of itself represented a failure to act in accordance with good employment practice in relation to a matter that was sufficiently under the control of the Prison Service that such good practice could, in practical terms, have prevented or reduced the occurrence or recurrence of the abuse of which Mr Hussain complained. Such a jump would ignore that Bullingdon's own stated Race Relations Service Order, Action Plans and its Deputy Governor's notice, coupled with the repeated Governor's reports, warnings, internal disciplinary enquiries and hearings and punishments had failed to achieve such ends. We find no perversity in the Tribunal's Extended Reasons.

6. Conclusion

37. We dismiss the appeal.