By Jo Seery, Professional Support Lawyer
Background
Mr Sodola commenced employment with NHS Direct in January 2013 as a Health Advisor/Call Handler. His employment transferred to the London Ambulance Service NHS Trust in November 2013. By 2020, his role was described as Health Advisor/Pathway Trainer.
In April 2020, Mr Sodola applied for a Team Manager role. It was his fourth application for that position. Mr Sodola described himself as a Black African man for the purposes of his race discrimination claim.
Following interview on 26 May 2020, Mr Sodola was unsuccessful. He scored 7 out of 15, while the four successful candidates (all white) scored between 9 and 14. One other unsuccessful candidate is Black and two are white.
Mr Sodola was informed verbally in early June 2020 that he had been unsuccessful and was given brief verbal feedback. He requested written feedback on 7 June 2020. Written feedback was eventually provided on 23 August 2020.
Mr Sodola brought two claims of direct race discrimination under the Equality Act 2010: first, in relation to the failure to appoint him to the Team Manager role; and second, in relation to the delay in providing written feedback.
The Employment Tribunal dismissed the claim concerning the failure to appoint him on the basis that the successful candidates scored higher than him.
However, it upheld the claim relating to the delay in providing written feedback. The tribunal found that Mr Sodola had established a claim for race discrimination on the face of it, taking into account that the delay was poor, contrary to the employer’s policy, and the feedback was not meaningful. Furthermore, there was nothing which prevented feedback from being provided earlier. Having found that there was a claim for race discrimination on the face of it (prima facie) the tribunal was not satisfied that the employer had provided a non-discriminatory reason for the delay. The London Ambulance Service NHS Trust appealed on the ground that when finding that there was a prima facie case of race discrimination, the tribunal had erred by:
- relying on the absence of an explanation:
- taking into account irrelevant factors including the fact that Mr Sodola had applied for the same role previously, that prompt feedback was important to him and he had lodged a grievance about the lack of career progression for Black and Minority Ethnic Staff.
Key Issues
Application of Section 136 Equality Act 2010 (Burden of Proof)
The key issue on appeal was whether the Employment Tribunal was entitled to conclude that the delay in providing written feedback amounted to direct race discrimination.
In particular, the EAT considered whether the primary findings of fact made by the Employment Tribunal were capable of supporting an inference that the delay was because of Mr Sodola’s race, such that the burden of proof under section 136 Equality Act 2010 shifted to the employer.
Outcome
The Employment Appeal Tribunal allowed the appeal and set aside the finding of race discrimination.
It did not accept that, by relying on the fact that the delay was contrary to the employer’s policy and that there was nothing preventing it from being provided earlier, the tribunal had determined that there was an inadequate explanation of the reason for the discrimination, which was a matter to be considered at the second stage. The EAT distinguished between “outward conduct” which might support the drawing of an inference at the first stage and an explanation for the conduct which is to be considered at the second stage.
As regards the second ground the EAT held that the tribunal had taken into account factors which were irrelevant as to whether race was the reason for the delay. The fact that Mr Sodola had lodged a grievance and there was a delay in the feedback indicated that there might have been a claim for victimisation but that not the claim that was brought.
The EAT therefore concluded that as the Employment Tribunal had taken into account matters that were irrelevant as to whether the delay was because of race , the finding of direct race discrimination could not stand.
Why This Matters
This decision confirms that, when applying section 136 Equality Act 2010, an Employment Tribunal must identify primary facts from which it could properly conclude that the treatment complained of was because of a protected characteristic.
Poor practice, delay, or procedural failings — without more — are not sufficient to justify an inference of discrimination. The case also highlights the importance of considering all potential claims which may be supported by the evidence.
