In this case, the Employment Appeal Tribunal (EAT) overturned an employment tribunal's decision that the respondent's delay in providing written feedback to a Black African employee following an unsuccessful promotion interview was direct race discrimination. The case concerned a three‑month delay by the London Ambulance Service NHS Trust (the Trust) in providing written feedback. The EAT held that the tribunal had relied on irrelevant background matters and that its findings could not logically support the inference that the delay was because of the claimant’s race.
Background
In discrimination claims the tribunal must apply a two-stage test to the burden of proof:
- The claimant must first show that there are facts from which the tribunal could decide, in the absence of any other explanation, that there was discrimination.
- If the claimant can show possible discrimination the burden of proof then shifts to the respondent to prove it did not discriminate.
Facts
Mr Sodola was employed by the Trust and applied for the fourth time for a team manager position in April 2020. He scored 7 out of 15 at interview, whereas the four successful candidates scored between 9 and 14 out of 15. The successful candidates were all white. Shortly after the interview, Mr Sodola received limited verbal feedback stating only that other candidates were more qualified and experienced. On 7 June 2020, he requested written feedback; however, one of the interviewing managers was away until late June, and the written feedback was not provided until 23 August 2020.
During this period, Mr Sodola sent a further complaint stating that he was expressing "BAME staff members" dissatisfaction with the recruitment exercise.
Mr Sodola subsequently brought two direct race discrimination claims:
- That he was unsuccessful in his promotion application because of his race
- That the delay in providing feedback was because of his race
The tribunal dismissed the first complaint - the Trust's decision not to promote Mr Sodola was not race discrimination as the Trust had demonstrated that Mr Sodola had genuinely scored lower marks than the successful candidates.
The employment tribunal upheld the second complaint, finding that the delay in providing feedback amounted to less favourable treatment because of race, identifying what it viewed as poor practice, inadequate communication, and an absence of meaningful written detail. Further, one interviewer did not give feedback at all and the Trust had not complied with its own policies on storing records. This was against a background that Mr Sodola had repeatedly applied for the role and been unsuccessful, four white people had been appointed to a position that at the time was only filled with white people, there was a lack of diversity in management and a lack of career progression for BAME colleagues.
On appeal, the Trust argued that the tribunal had misapplied the law as stated in the Equality Act, relied on irrelevant matters, and reached a conclusion that the primary facts could not support. The EAT agreed. It held that the tribunal had incorrectly inferred discrimination from matters unrelated to the alleged treatment. Many of the factors the tribunal relied on - such as wider concerns about diversity within the organisation or Mr Sodola's history of applying for promotion - were irrelevant to whether the delay itself was because of Mr Sodola's race. The EAT also held that although the delay was “poor practice” and the communication was inadequate, these findings did not logically support the conclusion that the delay was racially motivated.
The EAT concluded that, on the tribunal’s own findings, the only lawful outcome was that Mr Sodola had failed to satisfy the first limb of the burden of proof test. The burden of proof had not shifted, and therefore the discrimination claim could not succeed. The appeal was allowed.
What does this mean for employers?
This judgment provides a helpful reminder of the need to distinguish between poor administrative practice and discriminatory treatment. For employers, this means that although administrative lapses should still be avoided - because they can give rise to employee dissatisfaction, grievances, or reputational issues - they will not automatically translate into liability for direct discrimination unless there is evidence that the protected characteristic actually influenced the treatment. Having said that, employers acting in this way may leave themselves open to other discrimination claims – the EAT noted that the context and factors taken into account by the tribunal may well have been relevant to a claim of victimisation. The fact that Mr Sodola had lodged a complaint with the employer about discrimination and there was a delay in the feedback indicated that there could have been a claim for victimisation but that claim was not brought before the tribunal.
The case also highlights the importance of clear communication and consistent processes. While the delay in this case was ultimately found not to be discriminatory, the EAT did criticise the Trust’s “poor practice”. Employers should ensure that interview notes are properly stored, feedback is delivered promptly, and staff members understand their responsibilities in recruitment processes. Doing so reduces the risk of allegations escalating and ensures that, if challenged, the employer will be able to demonstrate a transparent and fair process.
