United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE APPELLANT


 


MR JUSTICE LINDSAY: We have before us by way of preliminary hearing an appeal by Mr R. Savalani in the matter Savalani against Financial Collection Agencies (UK) Ltd.

The matter came before the Industrial Tribunal in Birmingham on 27 May 1998. The decision was promulgated on 19 June. It was a decision of the Tribunal under the chairmanship of Mr J. Van Gelder and it was a full tribunal with three members. The unanimous decision of the Tribunal was that both applications - alleging unlawful discrimination firstly on the grounds of sex and secondly on the grounds of race - were dismissed.

The employer, Financial Collection Agencies, was engaged in a very competitive trade. The Industrial Tribunal said that it was part of an international group of companies. It has a United Kingdom base in London. It also has an office in Birmingham. Its function is to provide a debt recovery service for its clients. The service involves the respondents' staff making contact with people who are in default in the repayment of loans and seeking to recover the loans in the shortest possible time. The Tribunal sets out that: - "The very competitive nature of the work requires the staff to be pro-active in seeking recovery of the debts and to exert as much pressure as they are legally entitled to do in order to recover the outstanding money". It is a cut-throat trade.

On 12 January 1998 Mr Savalani presented an IT1 alleging both sex discrimination and race discrimination. He alleged that on 15 October 1997 he had applied for a job with the Respondent employer, that he had given details of his experience and he had left a Curriculum Vitae with the Company, that he was then told that he would be informed whether or not he had been successful but that he received a letter saying that he was unsuccessful and he baldly concluded "I believe that I was treated unfairly due to the fact that I was a male of Asian origin", but no reason for his belief was given.

On 4 February 1998 the Respondent lodged its answer in IT3 and then on 27 May, as we mentioned, there was the hearing at Birmingham that came to the conclusion that we have just mentioned.

So far as concerns findings by the Industrial Tribunal, it held that there had been 13 applicants for four jobs but that only 9 of them turned up for interview and that the successful candidates were four: a male of mixed white and Afro-Caribbean racial origin; a male of Asian origin; a female of Asian origin and a female white. The Industrial Tribunal held that Mr Savalani's previous experience as a debt counsellor was little help in the far more aggressive job of debt collecting, which was what the Respondent employer did. He had earlier been a debt counsellor, but debt counselling was already completed by the time that clients came to require the work of Financial Collections Agencies (UK) Ltd and, if anything, his experience was counted against him. The Tribunal held, if anything, his experience as a debt counsellor was seen as a negative factor because it would tend naturally to encourage a sympathetic approach to the debtor when the opposite was required.

The Industrial Tribunal directed itself on the law referring, inter alia, to King v Great Britain-China Centre [1992] ICR 516 and, in particular, the passage in the well known judgment of Neill LJ and the Industrial Tribunal held:

"The successful candidates from a field of 4 Asians, 3 Afro Caribbeans and 2 whites had been 2 Asians, one Caribbean/mixed and one white United Kingdom. It is very difficult to infer that there had therefore been a racial motive in the non-selection of the applicant. With regard to the allegation of sex discrimination, there had been 4 female and 5 male candidates from whom 2 female and 2 male had been selected. There was no real material for the tribunal to conclude that there had been any gender bias in the decision not to select the applicant. If it was the case that Mr Lovell had made a mistake in his selection by not offering a post to the applicant, then it had not been motivated by race or sex. Had the applicant been a white female exhibiting the same characteristics and employment history then exactly the same result would have been achieved."

They also held:

"The conclusions reached by Mr Lovell have already been examined. They were based on the specific personality traits of the individual as matched to the very specific requirements of the job. The applicant did not meet those requirements as well as the 4 successful candidates."

And then in their final paragraph, at 5.6 they said this:

"The tribunal concluded by reviewing all the evidence, both documentary and oral, by stepping back and taking an overall view of the applicant's complaints. The tribunal considered the matter from the position if the applicant had been female and white but they were not persuaded that, given the personal characteristics and the employment history and academic attainment of the applicant, the respondents would have arrived at any other decision or treated the applicant in any different way. The tribunal concluded that the treatment afforded the applicant concerning his job application had been fair and reasonable and that the respondents had not discriminated against him either on the grounds of his race or sex. Accordingly both applications are dismissed."

It may be added, for what it is worth, that the Managing Director and Financial Controller of the Company, to judge at any rate from the IT3, were both themselves of Asian origin and that of the 199 personnel which the Respondent employed, 66 were of ethnic origin.

Mr Savalani, who has indicated that he does not intend to appear today and has not appeared before us, has lodged a Notice of Appeal and it makes two points. He says firstly that in their paragraph 5.3 the Industrial Tribunal seems to have accepted that there was some form of sex discrimination. On a fair reading we do not hold that to be the case. What the Industrial Tribunal held is that:

"The applicant appeared to rely on his belief that he had superior qualifications to the 2 successful female candidates to justify his conclusion that he had been the victim of sex discrimination, but that ignores the fact that 2 male candidates whom he regarded as equally less well qualified had also been successful. Whilst this evidence points to some form of discrimination in that the 4 successful candidates had been preferred to the applicant, it was only to this limited extent and this did not provide any basis for the tribunal to infer that the non-selection of the applicant had been based in any way on his sex."

So there is nothing in that first point. The second point that he advances depends on an issue as to why some interview assessment forms had been completed, as they appear to have been completed. Was there merely some discrepancy or was there something more suspicious than only a documentary discrepancy. The point is dealt with in paragraph 3.12 of the Industrial Tribunal's Extended Reasons. It says this:

"The interview note at page 2 of the bundle had the date altered from the day after the interview to the date of the interview. The application form at page 29 of the bundle was dated 14 October on the first page of the application, but 12 October on the final page (page 32 of the bundle). The application form at page 15 of the bundle is dated 17 October but the assessment form is dated 4 days later, 21 October. The tribunal did not consider that these discrepancies were major discrepancies or that they pointed to any significant difference in treatment between the applicants, or gave rise to any inference that there had been any attempt to mislead the tribunal by altering documentary evidence."

It is especially within the province of the Industrial Tribunal to determine, on the evidence laid before them, whether discrepancies in documents are merely that or whether they point to some deception or cover-up or are misleading. Here they go into the issue and they decided that the discrepancies were not major or significant. That is very much a matter of fact for the Industrial Tribunal so often described as "the industrial jury". In neither case, looking at Mr Savalani's two complaints in his absence, do we detect any error of law. We do not find, looking at the matter even more generally, any fault with the manner in which the Industrial Tribunal directed itself or then implemented its own directions. We find no error of law and accordingly we dismiss this appeal.