Nwauzu v Investors Compensation Scheme Ltd [1998] UKEAT 601_98_0210

EAT
Nwauzu v Investors Compensation Scheme Ltd
[1998] UKEAT 601_98_0210 · 1998-10-02

JUDGE PETER CLARK:

This is an appeal by the Applicant before the Stratford Industrial Tribunal, Mr Nwauzu, sitting on the 2 February 1998, against that Tribunal's decision promulgated with extended reasons on 12 February 1998, dismissing his complaint of direct racial discrimination and victimisation against the Respondent, the Investors Compensation Scheme Limited.The relevant facts found by the Industrial Tribunal, as it then was, were these. The Appellant is black and of Nigerian racial origin. The Respondent was set up in August 1988 to administer the payment of compensation to investors who have made claims against failed investment firms.In March 1977 the Appellant was one of 150 applicants for posts with the Respondent, advertised in the national press. He submitted a curriculum vitae which gave details of his education and qualifications obtained between 1984 and 1996 in this country. He also referred to his work experience as a financial adviser with Hill Samuel Investment Services Limited, Liverpool, between 1990 and 1992. He gave as his qualifications that he was an associate of the Chartered Institute of Bankers and that he held LLB and LLM degrees. The CV did not stated that he held Financial Planning Certificates 1 and 2.We pause at this stage to observe that following termination of his appointment with Hill Samuel, he brought a complaint of unlawful and radial discrimination against that Company. The complaint succeeded before an Industrial Tribunal and that decision was upheld by this Appeal Tribunal on 22 April 1994.The 150 applications were sifted into 3 categories, "yes", "maybe" or "no". The Appellant's application was placed in the "yes" category and was marked by Ms Bailey, the Respondent's senior advisor, Claims Planning and Resources, with a tick, a question mark and the word "salary".Ms Taj Panesar, a personnel assistant wrote to the Appellant on 9 April, asking him to telephone her. He did telephone on the 11 April and advised her that his salary expectation was in the range of £18-25,000 per annum. That was noted on his application form.The Respondent had a salary range for the job. For someone of the Appellant's experience it was £14,400 to £15,000 per annum. It was their policy that if an applicant's salary expectations were higher than the range for the job, that application would be rejected. A number of people were rejected on that ground.Mr Nwauzu heard nothing from the Respondent and on 11 June he telephoned and spoke to Mrs Cenn; by that time Ms Panesar had left her employment. Mrs Cenn advised the Appellant that she could not find his application and accordingly he wrote again to her on 17 June enclosing a copy of his original application with a covering letter in which he said this:
"Although I understand that Ms Taj Panesar, the personnel assistant, has since left the company, please note that I called on 11 April and quoted my salary expectation as being within the rate of £18,000 to £25,000 per annum, subject to negotiation. I was assured that my salary expectation would be conveyed to the personnel manager, who I was led to believe has considered my profile as closely matching the exacting requirements of your company."
His application was reviewed by Ms Kennett and she asked Mrs Cenn to send a rejection as Ms Kennett assumed that although the Appellant had indicated that his salary was negotiable, it was negotiable between the two figures which he had quoted. Mrs Cenn wrote to Mr Nwauzu on 3 July 1997, saying that:
"Although your academic background is very interesting, your salary expectation is not commensurate with our salary scales, and therefore I regret to advise you that we will not be taking your application further.
Please accept my apologies for the time taken in dealing with your application and the inconvenience you have been caused."The Tribunal was told, and it would seem accepted, in evidence from the Respondent's witnesses that some applicants who received such a letter telephoned to agree reduced salary scales as offered by the Respondent and their applications were then proceeded with and at least one of them was interviewed. The Appellant did not telephone following receipt of that letter.The Tribunal dismissed the complaint of victimisation on the grounds that the Respondent was unaware of his successful complaint against Hill Samuel until after his application for employment with the Respondent had been finally rejected.The claim of direct racial discrimination failed on the grounds, first, that in the view of the Tribunal there was no difference in treatment between the Appellant's case and that of any comparator, but even if he had been able to show less favourable treatment, the Tribunal were unable to infer from the facts as found by them that such treatment was on the grounds of his race.In this appeal Mr Nwauzu does not seek to challenge the Tribunal's finding as to victimisation. His appeal is directed to the finding that he was not subjected to unlawful direct discrimination.He makes the following points. First, the Tribunal did not refer to his ethnic origin in paragraph 19 of their Reasons. Second, he submitted that there was no evidence to support the finding at paragraph 18(j) of the Tribunal's Reasons, that one of the applicants who rang up and indicated a willingness to proceed at a lower salary was granted an interview. In fact, he accepts that there was oral evidence to that effect from one of the Respondent's witnesses. As such it is not a case in which there was no evidence to support that finding. He also draws attention to what he submits is an unsatisfactory explanation put forward by the Respondent for losing his application form. All of these were matters which were before the Industrial Tribunal and it was for the Tribunal to evaluate and assess the evidence which it heard in order to determine the question, first whether there was less favourable treatment and secondly if so, whether that was on the grounds of race. It seems to us that, on the facts as found, the Industrial Tribunal was entitled to reach the conclusion which it did as a matter of law. It is not for us to retry questions of fact. In these circumstance we have concluded that this appeal raises no arguable point of law to go forward to a full hearing and it must be dismissed at this stage.