United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M SUTTON (of Counsel) Messrs Simmons & Simmons Solicitors 21 Wilson Street London EC2M 2QY
For the Respondent	THE RESPONDENT IN PERSON


 


JUDGE PETER CLARK: We have before us an appeal by Save & Prosper Ltd ["SPG"], and a cross-appeal by the applicant, Mr Sequeira, against a decision of the London (South) Industrial Tribunal that the applicant's complaint of unlawful racial discrimination was in part well-founded. Extended reasons for that decision, running to 17 closely-typed pages, following a 10 day hearing in January 1995, are dated 23rd August 1995 ["the reasons"].

The Complaint

The applicant, who is of Pakistani nationality, presented a complaint of both direct and indirect racial discrimination to the Industrial Tribunal as long ago as 6th January 1993. The grounds of his application ran to 32 numbered paragraphs. The basis of his complaint was his unsuccessful application for a position as a financial consultant/sales executive with SPG in 1992.

The Tribunal decision

Having reviewed the evidence the tribunal made essentially three linked findings of direct discrimination against SPG at paragraphs 48 and 49 of the reasons. The complaints of indirect discrimination were rejected.

Preliminary matters

At the commencement of the appeal hearing the applicant made four applications; first, he submitted that there was no case to answer on the appeal, a novel submission which we rejected. Second he sought a direction for additional Chairman's Notes of Evidence; we adjourned that question to see how the argument developed. In the event it is unnecessary to order further notes. Thirdly, he sought leave to add further parties to the appeal. Since these were individuals who had formerly been joined and then dismissed from the proceedings before the Industrial Tribunal we rejected that application, together with an application to join the company by whom those individuals were subsequently employed, Allied Dunbar Assurance PLC. Finally, he sought our leave to inform the Inland Revenue about alleged irregularities in the tax treatment of certain employees of SPG. He does not need our leave.

The appeal and cross-appeal

Mr Sutton, on behalf of SPG, acknowledged that if he was to succeed in attacking all three findings of discrimination made by the tribunal he must first undermine the first of those findings. If he failed on that score, then he acknowledged that the appeal must fail.

Accordingly, we heard argument from the parties only on this first ground of appeal, and reserved our decision on that point on the basis that if Mr Sutton succeeded, we should hear further argument on the remaining grounds of appeal; if he failed, that would be an end of the appeal.

For his part, the applicant accepted that if he was to defeat the first ground of appeal, it would be unnecessary for him to pursue his cross-appeal, in which he contended that the Industrial Tribunal had not considered every ground of his complaint; had failed to draw proper inferences from SPG's answers to the section 65 questionnaire, and was wrong to reject his complaints of indirect discrimination.

The first ground of appeal

First, the tribunal's finding; at paragraph 48 of the reasons they concluded that in halting the process of recruitment on 8th April 1992 Mr Townsend, the employee of SPG principally concerned with the recruitment exercise in which the applicant was involved, had treated the applicant less favourably on racial grounds than he would have treated a person not of the applicant's nationality and race. In order to understand that finding, and the attack made upon it, it is necessary to go back to the beginning of the story and the facts as found by the Industrial Tribunal.

In November 1990 Mr Townsend had moved to SPG from another employer with two colleagues. He wanted to build a team which would deal with high net worth clients. To this end he engaged the services of a personnel recruitment agency, Susan Hamilton Personnel Ltd ["the agency"], in January 1992. The person who dealt with the matter on behalf of the agency was a director, Jacqueline Labrom.

It is important to observe at the outset that having seen and heard the witnesses the tribunal preferred the evidence of the applicant and Ms Labrom to that of Mr Townsend where a conflict existed. That finding, which Mr Sutton accepts he cannot go behind, is significant in the context of considering the inference of discrimination drawn by the tribunal. We must bear in mind the guidance of Neill LJ in King v Great Britain-China Centre [1992] ICR 516, 528F-G:

"(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in". (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. ..."

Ms Labrom advertised the employment opportunity with SPG. Four posts were available. The applicant applied for a job. He was one of 20 candidates short-listed following an interview with Ms Labrom on 20th February 1992.

Mr Townsend interviewed the applicant on 28th February and 5th March. Those interviews were followed by telephone conversations between the two men. On 31st March, the tribunal found, the applicant asked Mr Townsend directly whether he wanted him. After a few moments Mr Townsend answered "yes".

That brings us to the critical period, 6th-8th April 1992. On 6th April the applicant attended the SPG offices and met with Mr Townsend and a colleague, Mr Walker. They discussed the applicant's background in business, and he told them of his prospects for business relating to Pakistan Government securities and a Pakistan insurance corporation.

The applicant took us to the note of that meeting which he prepared and which were accepted as accurate by the tribunal. The note records that Mr Walker had been unsuccessful in a pensions proposal to the Pakistan-based bank, BCCI.

This point was picked up by the tribunal at paragraph 40 of the reasons. In evidence, the tribunal there record, Mr Walker told them that he saw flaw after flaw in the applicant's plan.

At paragraph 41 of the reasons the tribunal say this:

"41. Two consideration arise from the evidence of the meeting between Mr Walker and Mr Sequeira. The first is that what Mr Walker believed at the time, and passed onto Mr Townsend, was quite different to that which he said to Mr Sequeira. Secondly, although he was dismissive of Mr Sequeira's ideas, and therefore negative in the opinion he formed, he was taking no account of the fact that according to SPG, and Mr Townsend's own evidence, Mr Sequeira would have undergone training and instruction, which would have corrected any misconceptions he had about how to develop business. From this evidence, and from these considerations, we draw the inference that at this point, the nationality of Mr Sequeira became a factor of significance in the attitude and thinking of Mr Townsend. It is clear that Mr Walker did not believe, or did not understand, that Mr Sequeira really did have the high level contacts he said he had, and we are compelled to draw the inference that Mr Walker was dismissive of these suggestions because he had a negative attitude about Mr Sequeira's different nationality. It may well have been linked to his view about BCCI. He simply did not distinguish between the overseas origins of the business contract of whom Mr Sequeira was speaking, and the British end of those contacts in the City."

On 8th April the applicant and Mr Townsend met again. At that meeting they went through a document entitled "New Joiners Scale". The completed document was apparently destroyed shortly after the event, but a blank form was before the Industrial Tribunal and is before us. It appears to be a recruiting tool. Each candidate starts with a score of 10. From that score any "negative factors" are deducted on a points basis. For example, two points are deducted if the candidate is a single parent. We remind ourselves that this is not a sex discrimination claim. A candidate must score at least seven points to be accepted. There was a conflict of evidence about the score achieved by the applicant. Mr Townsend said it was four, the applicant's evidence was that Mr Townsend told him at the time that his score was seven and that he was borderline. The tribunal accepted the applicant's evidence about that remark.

Subsequently, Mr Townsend told the applicant on 11th May that he was exactly the sort of person SPG were looking for, but he did not fit the profile because of Joiners Scale score.

Having preferred the evidence of the applicant and Ms Labrom to that of Mr Townsend, the tribunal concluded at paragraph 42 of the reasons that the joiners scale exercise was a sham, and was used as an excuse not to appoint the applicant to the post. They went on to find that Mr Townsend's attitude to employing the applicant changed after Mr Walker made negative comments about the applicant and that these related at least in part to the applicant's nationality and Mr Walker's contacts with other persons of Pakistani origin. We take this to be a reference to his unsuccessful proposal put to BCCI. In the absence of any explanation from SPG as to what the tribunal found was a sham exercise in relation to the Joiners scale, the tribunal drew the inference of racial discrimination referred to above.

Mr Sutton accepts that if the tribunal's findings at paragraph 41 of the reasons were permissible, that is the end of his appeal. We therefore turn to his attack on those findings.

He began by recognising the high burden placed on an appellant who challenges an Industrial Tribunal's reasoning on the basis of perversity. Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440, paragraph 33 (per Mummery J).

He submits that the tribunal has not explained how it came to the conclusion that Mr Walker was influenced in his dismissive attitude to the applicant by his race. In particular, he relies upon evidence given to the tribunal by Mr Sykes, a senior SPG manager, who supported Mr Walker's opinion that the applicant's business plans were flawed and further gave evidence that the true score on the Joiners Scale attributable to the applicant was four.

He complains that the tribunal did not explain why they rejected Mr Walker's evidence as to why he recommended to Mr Townsend that the applicant be rejected.

He relies upon the judgment of Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250, paragraph 8, for the proposition that the tribunal failed to give a sufficient account of its reasoning leading to the inferences of discrimination which it drew, particularly in paragraph 41 of the reasons. Links in the chain of that reasoning were missing.

Despite the attractive way in which Mr Sutton puts his submissions we are quite unable to accept them. This was a careful, well thought out and reasoned tribunal decision, reached after a lengthy hearing in which the tribunal had every opportunity to evaluate the witnesses and the evidence which they gave.

It would have been open to the tribunal, sitting as an industrial jury, to have accepted the case advanced by SPG, namely that the applicant genuinely failed to make the grade on the New Joiner's Scale, and that Mr Walker recommended that the applicant be not appointed on the ground that his business plans were flawed. They chose not to. Instead they preferred the applicant's evidence as to what he was told by Mr Townsend initially about his score on the Joiners Scale, supported by the evidence of Ms Labrom, and found that Mr Walker took against the applicant on the grounds of his race due to his perception of Pakistanis following his unsuccessful pitch for the BCCI pensions business.

These are matters of fact and inference for the Industrial Tribunal and not for us. There was evidence to support the inferences which they drew. We can see no flaw in the chain of reasoning which led to the tribunal's conclusions. We cannot say that this decision discloses any error of law.

Conclusion

It follows that the appeal must be dismissed. It is therefore unnecessary to consider the cross-appeal. The case should now proceed to a remedies hearing, in the absence of agreement.