United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S KHAN (Representative) Kirklees Racial Equality Council 4th Floor Pearl Assurance House 10-18 John William Street Huddersfield HD1 1AB


 


HIS HONOUR JUDGE D PUGSLEY

1. This is an appeal from a Tribunal sitting in Leeds, from its dismissal of the Applicant's claim that she was the victim of racial discrimination. We have had the benefit, and that word is used adviseably, of a careful skeleton argument by Mr Khan, who is a Community worker working for Kirklees Racial Equality Council and a thoughtful oral submission by him that has gained from being realistic, measured and reasonable. The overriding feeling that this Tribunal has is that we consider that we can well understand, as indeed the original Tribunal can, the reason why Ms Tuck has taken this action. Moreover we make no criticism of the fact that an appeal has been mounted.
2. The Applicant in 1998 was about 20 years of age, she was born in Middlesborough and at some stage she had been adopted by two white parents. Her name gave no clue to her Asian origins, though it was apparent to Mr Bates, the Respondent that she was Asian. Mr Khan said that if she was here, it would be obvious to us to witness she was of Asian appearance. However, she was not in any real sense a member of the Asian community. When interviewed she said she was asked a number of questions about her background, and she said she had no Asian friends, did not speak any of the Asian languages and did not have an Asian family. A suggestion was made that these questions in themselves were probative to the position as far as the attitude of the Respondents. Mr Khan before the Employment Tribunal, made the point that these matters were not relevant to her ability to carry out the job. That the Tribunal found this was clearly the case, but they say this

"a person who presents in the way the Applicant does would have been asked such questions for entirely innocent reasons, her position is clearly unusual, if nothing else and would be the subject of interest from a person in the position of Mr Moran-Bates. We accepted his explanation for asking those questions".

3. The Applicant herself had an interesting life. She had left school at the age of 16 and studied for various qualifications, but the formal qualifications that she had were really GCSE's. She had a varied work history, we do not quite know details of the background, but it seems that from 1996 she spent a greater part of her working career in Italy and regards herself as much as an Italian as a British person. She was fluent in Italian and most of her work was carried out as a Waitress/Bar person in Sardinia and in Northern Italy. In the autumn of 1998 she returned to this country with, she says, the intention of leaving the catering industry and obtaining other employment. She was unemployed when she returned to this country for four weeks, she then applied for a position with the Respondent's as a telesales operative.
4. Conversations took place with Mr Moran-Bates, which if the Tribunal had found those conversations did take place, would have been as the Tribunal accepted, highly significant in establishing race discrimination. It was contended that the Applicant was told by Mr Moran-Bates that the Respondent did not employ people of Asian origin and it did not sell its products to people of Asian origin. Mr Moran-Bates denied those comments and the Tribunal accepted that those comments were not made. The Tribunal examined the matters in dispute, they point out the rather obvious matter that as the Applicant was herself very much of Asian origin, the fact that she was employed made her appointment a breach of the racist criteria on which the Applicant claimed the Company operated. Further, they make the point that the Applicant's employment profile show that other people of Asian and other Ethnic origins were employed both before and after the Applicant, points against there being a policy of that sort. It is true, as Mr Khan has said that

"Asians in West Yorkshire are probably from the Indian sub-continent and some of the Asians are from other areas such as Vietnam also described as Oriental."

We think that the conclusion that the Tribunal reached that there was no conversation by any member of the Respondent firm was a conclusion to which they were entitled to come; further, it is open to them to say in view of such evidence we have on the Ethnic profile that no inference adverse to the Respondent in terms of equal opportunities could be drawn.

5. The second matter which the Tribunal analysed in some detail in paragraph 7, is a suggestion that they did not deal with those of Asian origin. There was before the Tribunal, a degree of statistical evidence that those of Asian origin or of Ethnic minority formed a substantial proportion of the population. The Company did sell to some Asians and the Tribunal make the point that the mode of sale is to take from the appropriate telephone directory, photocopies and telesales operatives are instructed to contact each person listed in the directory from A-Z within a particular directory in seeking to sell the Respondent's products. The Asian origin would not necessarily have been obvious and indeed it is within the judicial knowledge that some people have perfectly old fashioned English names which might suggest Asian origin. At the end of the day the Tribunal's finding was that the Company had no such policy
6. The Applicant only lasted a few days and she was told she was over qualified for the position. The Tribunal make a criticism of that, what they say is over qualified would not at all be appropriate from her CV and the evidence in the document of her work experience. It was abundantly clear to the Tribunal that the Applicant was not over qualified for this work in any ordinary sense of that word. She had four GCSE's at C level and above; she had not completed a full NVQ or GNVQ, and her work in the catering industry was largely as a waitress, with a short period as a hotel receptionist. She had not displayed any ability to work at any level substantially higher that might have been expected in the employment which the Respondent offered. The Respondent did not mean formal qualifications The Tribunal found that what they meant was the Applicant was too enthusiastic, intelligent and bright to be likely to remain in this employment for any length of time. In short, the Respondent's argument before the Tribunal, is that it had to invest substantial time and therefore money in training new employees and unless such employees were likely to remain in post for more than two months, there would not be a return on the investment. That was its normal procedure and it was applied to the Applicant as it applied to every other new employee.
7. At a meeting on 2^nd December 1998, the Applicant's employment was summarily terminated. In the light of the explanation given, as to being over qualified and in the light of the question she had been asked as to her Asian connections, it was not at all surprising to the Tribunal, that the Applicant concluded the reason for her employment being terminated was entirely connected to her race and she instigated these claims. The Tribunal carefully set out the law, they carefully set out their finding of fact and at the end of the day they came to this view that they accepted the evidence of the Respondent, that the Respondent were taking a commercial decision that the Applicant was unlikely to stay for any length of time and accordingly followed its usual procedure and employment was terminated within a matter of days, therefore limiting the amount they would lose in terms of training. The Tribunal described it as a "topsy turvy" world and they had no hesitation in saying that in most circumstances they would have rejected the explanation. But in this particular case, they accepted it. They accepted the Respondent's evidence that for someone of the Applicant's personality, this job was going to be one that would likely prove to be very unsatisfactory. Of the calls made only a very small number are positive. The Respondent Company accepts that of the people telephoned, some 98 out of 100 will reject the approach. That level of rejection is normally regarded as too high to keep the attention of someone such as the Applicant. What was wanted was a "plodder". A paradoxical situation arises that the brighter, more able new employees the less likely to be retained. That of course is the exact opposite of what we would expect to be the normal experience. We are bound to say that both members of the Tribunal, from direct experience are well aware that Companies are reluctant to employ bright, able people in certain jobs, where putting it bluntly, you do not want brightness or any great deal of ability. What you want is people with an capacity to do boring and at times distasteful things, such as telephoning people, cold, trying to persuade them to buy items. The Tribunal accepted the Respondents made a bona fide decision in this case, the Applicant would get bored. There were criticisms made by the Tribunal and indeed it says in terms in paragraph 21 that it had not helped itself in its conduct of this matter. If it had set out its processes in some detail to the Applicant at the relevant time; if they have made greater efforts in its answers to the questionnaire and the Notice of the appearance, the Tribunal believed that it was highly unlikely that the Applicant would have continued these proceedings and possibly would have not brought them in the first place. Notwithstanding the able argument of Mr Khan we consider our only option is to dismiss this appeal.