This Employment Appeal Tribunal decision provides important clarification on the burden of proof in discrimination claims and reinforces the distinction between poor treatment and unlawful discrimination.
Mr Sodola brought two claims of direct race discrimination. He alleged that he should have been promoted and that his employer delayed in providing feedback following his unsuccessful application.
The employment tribunal rejected the promotion claim, finding that the successful candidate was better qualified. However, it upheld the feedback claim, concluding that the circumstances of the delay were sufficient to shift the burden of proof to the employer, which it found had not shown that race played no part.
The Employment Appeal Tribunal overturned that finding. It held that the tribunal’s conclusions that the delay was poor and that the feedback was brief were descriptions of the treatment complained of, not facts capable of supporting an inference of race discrimination. Without something more, the burden of proof did not shift.
The decision reinforces that poor management, or inadequate communication does not, without more, amount to discrimination. Employers should still aim for timely and fair processes, but liability under discrimination law requires evidence capable of supporting an inference of unlawful motivation, not simply unsatisfactory treatment.