Key takeaways
Burden of proof requires something more
Delay was insufficient without evidence linking it to race.
Irrelevant factors cannot be considered to shift burden of proof
These did not logically suggest that feedback was delayed ‘because of’ race.
Tribunals may assess employer’s explanations
Inconsistent or implausible conduct can still suggest prima facie discrimination.
The EAT has recently overturned an employment tribunal's finding that a respondent's delay in providing feedback to a candidate following an unsuccessful promotion application was direct race discrimination.
Legal background
Unlawful direct race discrimination occurs where an employee is treated less favourably because of race. This requires a comparison of how the employee was treated when compared to actual or hypothetical comparator(s) whose circumstances (other than their race) are materially the same.
A two-stage test applies to the burden of proof:
Firstly, at first sight, can the claimant show possible discrimination? If not, the claim fails.
Secondly, if the claimant can show possible discrimination, the burden of proof shifts to the respondent to prove that it did not discriminate.
However, the fact that a claimant has been treated less favourably than an actual or hypothetical comparator will not be sufficient to shift the burden of proof to the respondent unless there is ‘something more’ from which the tribunal can conclude that the difference in treatment was because of the claimant's race.
Factual background
In April 2020, S, who is a Black African man and had been employed by London ambulance service for several years, applied for the fourth time for a team manager position. He was interviewed by two-person panel made up of one black and one white manager. S’s application was unsuccessful as the four successful candidates (who were all white) scored more highly than he did. S requested written feedback but, when this was not provided, S complained saying the employer’s BAME staff were dissatisfied with the recruitment process. Nearly three months after his interview, S eventually received brief written feedback from the white interviewer; the black interviewer (who had chaired the panel) did not provide any feedback.
S later brought two race discrimination claims - alleging he was unsuccessful in his application because of his race, and that the failure to provide him with timely written feedback on his unsuccessful application was also because of his race.
Employment tribunal decision
The employment tribunal held that the burden of proof had passed to the employer in respect of both complaints. The tribunal dismissed S’s first complaint on the basis that the employer had established that S had scored less well than the successful candidates. However, the tribunal upheld S’s second complaint, finding that the delay in providing feedback constituted direct race discrimination.
In relation to that successful complaint, the tribunal found that the delay giving feedback was poor, the verbal feedback given was bare and the very brief written feedback gave no additional or meaningful detail. Further, noting that the black interviewer had not provided any feedback and the employer had not complied with its own policies on storing records. The tribunal also took account of the fact this was the fourth time S had unsuccessfully applied for the same role, that the four successful candidates were white, that at the relevant time all staff holding that position were white, and that S had raised issues of the lack of recruitment and career progression for BAME staff. The tribunal decided that the burden of proof had shifted to the employer and held that it had failed to adduce cogent reasons for the delay. The employer appealed.
EAT decision
The EAT upheld the employer’s appeal and held that the tribunal had erred when it relied on irrelevant factors when deciding that the burden of proof had shifted from the S to the employer. Although some of the factors the tribunal had relied on were relevant to S’s other complaint (regarding his unsuccessful promotion application), they did not logically suggest that feedback regarding the unsuccessful application was delayed ‘because of’ S’s race.
The tribunal had not, however, erred in considering the employer’s explanation for S’s treatment as part of the first stage of the burden of proof test. This requires the tribunal to consider whether there are facts, “in the absence of any other explanation”, that show a prima facie case of discrimination and shift the burden of proof to the employer. At this first stage, a tribunal could consider “outward conduct” from which discrimination could be inferred, including any inconsistent or demonstrably false reasons for the claimant’s treatment. It was only the employer's “subjective motivation” which had to be left to the second stage.
The EAT allowed the appeal, concluded that the burden of proof did not shift to the employer, and set aside the finding of race discrimination.
