Delay alone is not discrimination: EAT clarifies limits of inference under the Equality Act

Background

In the case of London Ambulance Service NHS Trust v Sodola, the Employment Appeal Tribunal considered whether a delay in providing written feedback following an unsuccessful promotion application amounted to direct race discrimination.

Mr Sodola, a black African man, was employed by the Trust and applied for a Team Manager role in April 2020. It was his fourth application for that role. He was interviewed but scored lower than the successful candidates, all of whom were white.

Mr Sodola was told verbally in early June 2020 that he had been unsuccessful and was given brief feedback. He requested written feedback, which was not provided until 23 August 2020, around three months after the interview. He brought claims alleging that both the failure to promote him and the delay in providing written feedback were acts of direct race discrimination.

The Tribunal rejected the promotion complaint but upheld the complaint relating to the delay in feedback, concluding that the delay was because of Mr Sodola’s race.

The EAT decision

The Employment Appeal Tribunal allowed the Trust’s appeal and set aside the finding of discrimination.

The EAT accepted that the delay in providing written feedback was poor practice and that the feedback itself added little to what had already been said. However, the Tribunal had misapplied the burden of proof provisions.

The EAT emphasised that the burden of proof operates in two stages. First, the claimant must establish facts from which a reasonable tribunal could conclude that discrimination may have occurred. Only if that evidential threshold is crossed does the burden shift to the employer to show that the treatment was not discriminatory.

The tribunal had held that the burden of proof had passed to the respondent in relation to both allegations, however, the promotion claim failed because the respondent had established the reason for not appointing the claimant was that he scored lower than the successful candidates.

In contrast, the tribunal found that the respondent did not have an adequate explanation for the delay and could not show the treatment was not discriminatory. In finding for the claimant, the tribunal also relied on other matters, such as length of the delay, failures to follow internal procedures, the minimal nature of the feedback, the claimant’s frustration and the wider background of concerns about diversity.

The EAT determined that the tribunal erred in finding that the burden had shifted to the respondent, and that the burden had not been discharged. The factors relied upon were irrelevant to a claim of direct discrimination and could not reasonably lead to a conclusion that the reason for the delay was because of the claimant's case. Rather, they merely described what happened, but not why it happened. The EAT held that none of those factors, whether taken individually or together, logically supported an inference that the delay occurred because of the claimant’s race.

The EAT also highlighted the internal inconsistency in the Tribunal’s reasoning. Having found that the promotion decision itself was not discriminatory, it was not open to the Tribunal to conclude that the delay in providing feedback about that decision was racially motivated without clear evidence pointing in that direction.

Because the claimant had not established facts capable of supporting an inference of race discrimination, the burden of proof never shifted to the employer, and the claim could not succeed.

Learning points for employers

For employers, the case provides a helpful illustration of how the burden of proof operates in practice. Claimants must first point to facts that suggest a link between the treatment complained of and the protected characteristic. Where that link is missing, the burden should not shift. Delay, poor process, inadequate communication and failure to follow procedure may be legitimate grounds for criticism, but they do not, without more, allow a tribunal to infer discriminatory motivation.

That said, the case is not a licence for complacency. Delays in providing feedback and weak handling of promotion processes can damage trust, prompt grievances and increase litigation risk. Clear procedures, timely feedback and accurate record-keeping remain important safeguards, even where decisions are fair and non-discriminatory. 

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For more information or advice, please contact Sofia Efstathiou in our Employment team.