Appeal No.	 EAT/1250/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 March 2001

Before
MR RECORDER LANGSTAFF QC
MS N AMIN
MISS D WHITTINGHAM

MR S S HUSSAIN	APPELLANT

HM PRISON SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	MR ANTHONY KORN
(of Counsel)
Messrs Lees Lloyd Whitley
Solicitors
6th Floor Castle Chambers
43 Castle Street
Liverpool L2 9TJ	

MR RECORDER LANGSTAFF QC

1	We propose in this matter which comes before us by way of Preliminary Hearing from the Reading Employment Tribunal promulgated on 24 August 2000 to give permission for the matters to be ventilated before a Full Tribunal.  

2	We should however, say a few words about the basis upon which we think that this matter is properly arguable.  At paragraphs 25 and 26 in the conclusions of the Tribunal, there is a reflection of that which is earlier said by the Tribunal at paragraph 22 and that is, that the Employment Tribunal have approached the resolution of the task by asking first, was there something that the employer could have done to prevent or minimise what occurred, (those words, ‘or minimise’ will be the subject of later comment), and has then gone on to say, was the failure to do so, if such is proved, racially motivated.  It seems to us that it is highly arguable, if not obvious, that the latter proposition is an error of law and that to ask the question, as is done in the third sentence of paragraph 26, is capable of being such an error.  That question succeeded the question of whether or not, on the facts, action had been taken to control the problems posed to the Appellant by the activities of third parties.  

3	It may be that in paragraph 25 where the Employment Tribunal say:

“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 Employment Tribunal were dealing with the facts in a way which falls within the existing law in an appropriate way.  We consider that it is at least arguable that it does not.

4	This is for 3 reasons.  First, Mr Korn in his very helpful arguments, points out that the focus of the earlier part of paragraph 25 appears to be on whether or not the dangers posed by racial abuse could be eliminated.  It seems to us arguable that that is to pose too high a test.  The question might have the words added, ‘or minimised’.  He reads, and we think it is arguable that the reading is appropriate, that the words, ‘ to try and control a difficult problem’ should in the context be a reference to, ‘try to eliminate’ rather than merely reduce.

4	Secondly, the question posed, was the action reasonable in all the circumstances, is a test.  The test does not appear in statute, nor is it the test which Mr Justice Smith proposed in Burton v De Vere Hotel Ltd (1977) ICR 1 at page 10 letters E-F.  There it is good employment practice.  It may be the same thing but it is not self evident that that is so and the matter is, we think, capable of argument.  Although, of course, the focus must be on the statute rather than on glosses intended to be helpful.

5	The third reason we think is arguable, is that all the circumstances must necessarily include the fact that there was a Home Office order in terms of PSO 2800 which arguably was directive in its terms.  The Employment Tribunal appear to have recognised that those terms and directions were not given effect to at this particular prison.  It may be that the conclusion might have been different if the question had been posed, is it reasonable in all the circumstances for the prison not to observe the terms of PDO 2800?  Which arguably they may not have done.

6	Those it seems to us, are the live issues in the case.  They do not, it seems to us, require amendment of the Notice of Appeal.  We would suggest that this case would require 3 hours for hearing.  Skeleton arguments and any authorities to be relied upon to be provided no less than 14 days prior to the hearing.  It should be listed in category A, given the importance to the Prison Service and the importance in possible further elaboration of what is said in the Burton case.  There has been an application for the Chairman’s notes of evidence.  It has not been elaborated before us but we do not think they are necessary.