London Ambulance Service NHS Trust v Sodola (Debarred)
In London Ambulance Service NHS Trust v Sodola (Debarred), the Employment Appeal Tribunal (EAT) held that the Employment Tribunal (ET) was wrong to infer that the Trust’s delay in providing written feedback about why a black employee had not been promoted, was discrimination on the grounds of race.
Facts
The Claimant, a black African man, was employed by the Respondent, an NHS Trust, as a Health Advisor/Pathway Trainer from 2013. In April 2020, the Claimant applied for a role as a Team Manager but was unsuccessful following an interview in May 2020. The Claimant had applied for the role on three occasions previously. The Trust provided verbal feedback to the Claimant following the interview, explaining that whilst the Claimant was a strong candidate, the four other candidates (who were all white) were more qualified and experienced for the role. The Claimant requested written feedback in June 2020, which was not provided until August 2020, 2 months after the interview had taken place.
The Claimant submitted a claim for direct discrimination on the grounds of his race in the Employment Tribunal for (a) being unsuccessful in his application for the Team Manager post and (b) for the delay in the Respondent providing written feedback.
Tribunal Decision
The Tribunal dismissed the claim for direct race discrimination in relation to the decision not the promote the Claimant to the role. The Trust had established that the reason that the Claimant was not appointed to the role was because he had scored lower marks than the successful candidates. The Trust therefore successfully established that the decision not to promote the Claimant was unrelated to his race.
However, the Tribunal found that the Claimant had established a prima facie case of direct race discrimination in respect of the delay in providing feedback as the initial verbal feedback was bare and the brief written feedback did not give any additional or meaningful detail. The Claimant had also repeatedly raised issues of the lack of recruitment and career progression for BAME employees. The Chair of the interview panel (who was black) had deferred her reply to her white colleague and there was no explanation why she could not have provided her own feedback to the Claimant. The Tribunal was not satisfied with the Trust’s explanation regarding the delay in providing feedback. Accordingly, the Tribunal drew an inference that the delay in providing feedback was related to the Claimant’s race and upheld that part of his claim. The Respondent appealed the decision.
Appeal Decision
The EAT found that the Tribunal took into account irrelevant factors when concluding that there was prima facie race discrimination; including the fact that the Claimant had previously applied for the role unsuccessfully, that the verbal feedback was bare, the written feedback gave no additional or meaningful detail, the lack of explanation as to why the Chair could not have provided her own feedback or that the Respondent did not comply with its own policies on storing records. The EAT determined these factors were simply descriptions of the treatment which the Claimant complained. The EAT noted that these factors may have been relevant if the Claimant had brought a complaint of victimisation but could not logically lead to an inference that the Respondent’s delay was discriminatory. In those circumstances, the EAT found that the burden of proof had not shifted to the Respondent and therefore the appeal was allowed.
Comments
Although it was found that the delay in providing feedback was not discriminatory, the case highlights the importance of employer’s promptly responding to any requests for feedback following a recruitment process, to avoid similar disputes arising. To the extent that there might be delays in feeding back to applicants, communicating this in advance may assist with managing expectations and assist with minimising risk.