Late feedback for job interview performance leads to race discrimination finding

In the recent case of Sodola v London Ambulance Service NHS Trust 308344/2020, an Employment Tribunal has considered a claim that an employee was discriminated against on the grounds of his race when:

1. His application for a team leader role was unsuccessful following a job interview; and
2. Feedback for the interview was not provided until almost three months after the interview had taken place, in spite of the Claimant having complained of discrimination soon after the outcome.

Burden of proof

The burden of proof is on the claimant to show facts from which it could be inferred that discrimination had probably occurred, in the absence of another explanation. If the claimant has shown such facts, then because the law recognises the difficulties of proving race discrimination, the burden of proof shifts to the respondent to show that the treatment complained of was in no sense whatsoever on the grounds of race.

The Employment Tribunal decided that the burden of proof had shifted to the Respondent because:

a) Of seven candidates, the four appointed as team managers were white. Two of the seven not appointed were black, including the Claimant. Although the third person not appointed was white, he was an agency worker;

b) All team managers at that time were white; and

c) The claimant met the shortlisting criteria and was known to the interviewers, as were the other candidates. He had applied previously, having been in his post for eight years.

Unsuccessful job application

Although the burden of proof had shifted, the Employment Tribunal accepted the respondent’s explanation that the claimant was not appointed because he had not performed as well at interview. In reaching this decision, the Employment Tribunal was critical of the respondent’s evidence, which did not clearly explain the reasons for the scores. However, the written notes from the interview suggested that the claimant had not provided many examples when answering questions. When giving evidence, the claimant had not asserted that he had provided specific examples. As such, the Tribunal accepted that the interview score was accurate.

Late provision of feedback

The burden of proof had also shifted to the respondent in respect of the late feedback for the same reasons. However, the respondent had not put forward credible reasons for the delay. The claimant had complained that the recruitment exercise was discriminatory. The feedback eventually provided was rather brief, suggesting it could have been provided earlier. As such, the Employment Tribunal decided that the respondent had not proven that the delay in providing feedback was not connected with race and the claim succeeded.

Conclusion

This case is a helpful reminder that employers should be particularly vigilant when an employee has alleged discrimination. A failure to provide a robust explanation for any detriment suffered by the employee could lead to a Tribunal inferring that race was the reason for a detriment, even if the employer was not in fact motivated by this.

Our team of employment law experts can help your organisation prevent discrimination claims from arising by advising on preventive actions from an early stage.

Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting one of our legal experts.