No attendance or representation for the claimant
The claimant was represented by a Solicitor, Mr C Ezike, in the Employment Tribunal. The respondent gave the details of Mr Ezike at Universe Solicitors as the contact for the claimant. The appeal was initially served by email using an incorrect email address referring to "universalsolicitors" as opposed to "universesolicitors". After some correspondence from the EAT had been sent to him by post, Mr Ezike sent an email to the EAT on 13 August 2024. He explained the email address error and stated "I shall provide a response as soon as possible". No further correspondence was received from Mr Ezike.
An email stating that the EAT was considering debarring the claimant from participating in the appeal was sent to Mr Ezike. On 30 October 2024, the EAT sent a debarring order to Mr Ezike which was copied to the claimant's personal email address. No response was received. On 5 January 2025, the Notice of Hearing was sent to Mr Ezike, copied to the claimant's personal email address. Again, no response was received. The claimant is still employed by the respondent. I was informed that the email address used for the claimant in this appeal is the email address on their current employee records. In those circumstances, I concluded that it was appropriate to hear the appeal in the absence of the claimant.
The claim
The claimant commenced employment with NHS Direct in January 2013 as a 111 call service Health Advisor/Call Handler. His employment transferred to the respondent in November 2013. By 2020, the claimant's role was described as "Health Advisor/Pathway Trainer".
The claimant applied for a role as a Team Manager in April 2020. The Employment Tribunal noted that it was his fourth application for the job. The claimant contended that he was more qualified than white colleagues who had previously been appointed to the role. The claimant described himself as a black African man for the purposes of his race discrimination complaint.
The claimant advanced two complaints at the Employment Tribunal hearing. The first was that he was unsuccessful in his application for the Team Manager post following an interview on 26 May 2020. The second was that the respondent failed to provide written feedback until 23 August 2020. Both complaints were asserted to be less favourable treatment because of the claimant's race.
The claimant applied for the Team Manager post on 30 April 2020. The claimant and six other colleagues were shortlisted. The claimant was interviewed by Mrs Robinson, Team manager, and Ms Wallen, Deputy Site Lead, who was the chair of the panel. Mrs Robinson gave evidence. Ms Wallen did not. The Employment Tribunal recorded that Mrs Robinson is white and Ms Wallen is black. The fact that Ms Wallen is black does not mean that she could not have discriminated against the claimant because of his race, although it might be thought to make it less likely.
The claimant scored 7/15. The four successful candidates are white. They scored 9/15, 10/15, 13/15 and 14/15. One of the other unsuccessful candidates is black and two are white.
Mrs Robinson contacted the claimant by telephone in early June 2020 and informed him that he was unsuccessful. The Employment Tribunal accepted his contention that he was given vague feedback that "you are a strong candidate, but other candidates are more qualified and experienced".
On 7 June 2020, the claimant wrote to the interview panel to request written feedback. On 8 June 2020, Ms Jones replied stating that once feedback had been completed a meeting would be arranged. On 9 June 2020, Ms Wallen sent an email stating that the interview notes had been stored and locked away by Mrs Robinson who would be returning from holiday on 22 June 2020. The Employment Tribunal stated "We were not provided with any reason as to why Ms Wallen could not have provided her feedback or why she did not explain that Mrs Robinson would provide hers on her return, adding to Ms Wallen's feedback".
The claimant sent a complaint on 25 June 2020, stating that he was expressing "BAME staff members' dissatisfaction at the level of procedural misconduct on the last team manager recruitment exercise" and that "Interview records were neither maintained nor stored as recorded by the procedure and this made it impossible to get a timely feedback for inclusion in complaint to even challenge the process". The claimant questioned the quality of feedback, the selection process, career progression and requested an investigation and review of the Team Manager recruitment exercise. The email was acknowledged the next day. A meeting to discuss the claimant's concerns was held on 18 August 2020.
The claimant received brief written feedback on 23 August 2020 from Mrs Robinson who stated "you came across as very confident - however did not answer the questions effectively - I recommend that you attend a workshop for interviewees which the Trust offer". The Employment Tribunal held of the timing of the feedback:
The conclusions of the Employment Tribunal
The Employment Tribunal held that the burden of proof had passed to the respondent in respect of the non-appointment complaint but that the respondent had established that the reason that the claimant was not appointed was that he had scored less well than the successful candidates.
The Employment Tribunal upheld the complaint in respect of the delay in providing feedback:
The relevant legal principles
Section 136 EQA provides:
The respondent focused in this appeal on the distinction between "facts" and "explanation" and what was said by Lord Leggatt in Efobi v Royal Mail Group Ltd [2021] UKSC 33 , [2021] ICR 1263 which the respondent contends means that on a section 136 EQA analysis anything that amounts to an "explanation" or lack thereof, which includes anything said about the reason for the claimant's treatment at any time, must be ignored at stage one.
If I were to construe section 136 EQA free from authority that would not be my construction. Section 136 EQA begs two questions. The first is what is meant by the term "explanation". The second is why does the provision use the term "any other" explanation; "other" to what? I consider the natural meaning of the words is an explanation that establishes why the treatment was other than discriminatory - where the employee has established facts from which discrimination could be inferred, an explanation why, despite those facts, the reason for the treatment was not discrimination.
The predecessor provision in section 54A Race Relations Act 1976 referred to an "adequate explanation" which again suggests an explanation that is adequate to establish that the treatment was not discriminatory. In Efobi the Supreme Court held that the change of wording did not change the meaning of the provision but was designed only to clarify that the reason established need only be one that is not discriminatory, rather than one which satisfied some objective standard of reasonableness or acceptability.
In Laing v Manchester City Council [2006] ICR 1519 , EAT, Elias J (P) stated:
That analysis fits with the "other explanation" being one that shows that the treatment was not discriminatory.
In Birmingham City Council, Mrs S Semlali v Mrs P Millwood UKEAT/0564/11/DM Langstaff J (P) held:
Millwood was considered by Heather Williams QC, then sitting as a Deputy Judge of the High Court, in Raj v Capita Business Services Ltd and another [2019] IRLR 1057:
In Base Childrenswear Ltd v Otshudi [2019] EWCA Civ 1648 , [2020] IRLR 118 , Underhill LJ accepted that an Employment Tribunal was entitled to consider that the burden had passed to the respondent to disprove discrimination based on the following facts:
These authorities suggest that where an employer has given inconsistent or demonstrably false reasons for treatment this might be relevant at the first stage of a section 136 EQA analysis.
Subject to whether I am bound by Efobi to find otherwise, I would analyse the situation as follows. If at the time the employer has given an employee inconsistent reasons for the treatment, reasons that are manifestly untrue or has not provided any reasons to the claimant when they have been given to others of a different race, those are facts that could be relevant at the first stage in determining whether an inference of discrimination could be drawn, absent any other explanation. If an employer gave a reason at the time of the treatment that suggests discrimination, such as we thought you would not "fit in" or you are "not one of us", it seems illogical to me to exclude that from consideration of whether the burden of proof has shifted at the first stage. Even where such reasons have been given at the time of the treatment it is possible that some non-discriminatory explanation could still be advanced, but the burden would firmly be on the respondent to do so. The statute does not state that any "explanation" must be ignored at the first stage, but that any "other explanation" must be ignored; or what in the predecessor provisions was referred to as the lack of an "adequate explanation". It is probably better to refer to anything the respondent may have said about the treatment as a "reason" rather than an "explanation". A decision made by an Employment Tribunal about what the employer did or did not say about its reason for treating an employee as it did is a finding of fact that can generally only be challenged on perversity grounds. Subject to what is said in Efobi , I can see no reason why such findings of facts cannot be considered at the first stage, providing they are not an "other explanation" as to why the treatment is not discriminatory. It may not always be easy to draw the dividing line between findings of fact about what was said about the treatment by the respondent at the time (such as false or inconsistent reasons), from which an inference of discrimination potentially might be drawn, as opposed to any "other explanation", that must be ignored at the first stage. I would be inclined to think where that line is to be drawn is a matter for the good sense and appreciation of the Employment Tribunal.
The authorities I have so far quoted predate Efobi . In one authority that postdates Efobi HHJ Auerbach applied a similar analysis to that which I prefer, in Jaleel v Southend University Hospital NHS Foundation Trust [2023] EAT 10 :
Mr Ross, for the respondent, contends that this is incorrect as a matter of law because it is contrary to statements of Lord Leggatt in Efobi .
In Efobi the key issue was whether the change in wording from the predecessor provisions to section 136 EQA meant that at the first stage the burden was no longer on the claimant to establish facts from which discrimination could be inferred. The Supreme Court held that there was no change in meaning from the predecessor provisions. The Supreme Court stated that whether the absence of evidence from a decision maker could result in an inference of discrimination was a matter for the appreciation of the Employment Tribunal. There had been no error of law in the Employment Tribunal concluding that the burden had not passed to the respondent to disprove discrimination in the circumstances of the case, despite the fact that the decision makers had not been called. Efobi was a case in which no explanation had been provided by the employer. It was not a case in which inconsistent reasons or manifestly false reasons for treatment had been given; or where at the tine of the treatment the employer had given the claimant no reason for the treatment but had provided reasons to others of a different race. I consider it is important to analyse what Lord Leggatt said in that context. However, I accept that he referred to the exclusion of an explanation for treatment in forthright terms at a number of sections of his judgment.
At paragraph 15, when considering the predecessor provisions he stated:
I do not consider that passage is incompatible with my preferred analysis, because the key distinction that is drawn is between "outward conduct" and "subjective motivation". If the employer has made inconsistent statements or manifestly false statements about the reason for the treatment at the time it occurred, or in its aftermath, I see no difficulty in analysing that as being "outward conduct" rather that constituting some other explanation through which the employer seeks to establish that the subjective motivation was not discriminatory.
At paragraph 22, Lord Leggatt stated:
I do not consider that this section of the analysis precludes any consideration of facts that may relate to the reason for treatment - what must be ignored is what is said by the employer about the subjective motivation for the treatment, which would only be relevant if the second stage was reached, to assert that the treatment was not discriminatory.
At paragraph 23 Lord Leggatt stated:
I consider that this passage demonstrates that there may be "facts" that point towards or away from discrimination. When at the end of the passage Lord Leggatt refers to "the rule that evidence of the reason for any such less favourable treatment cannot be taken into account at the first stage", that is a reference to any explanation; i.e. the subjective motivation of the decision maker.
Having concluded that the change in wording from that in the predecessor provisions to that in section 136 EQA did not result in any change of meaning, Lord Leggatt went on to consider the analysis of the Employment Tribunal:
Application to this case
I do not consider that the passage goes further than reiterating that at the first stage the Employment Tribunal acts on the assumption that the respondent has not advanced any other explanation for the treatment.
The passage in Efobi upon which the respondent placed the greatest reliance was that at paragraph 40. On one reading I can see why Mr Ross, for the respondent, asserts that anything said, or not said, by the respondent about the reason for the treatment must be ignored at the first stage. The respondent contends that at the first stage the Employment Tribunal must in all circumstances ignore whether the employer has offered an explanation and, if so, what the explanation is, or that no explanation has been provided. I consider that paragraph 40 has to be seen in the context of the proceeding paragraphs:
This passage demonstrates that Lord Leggatt was considering whether an inference could be drawn from the fact that decision makers had not been called to give evidence as a result of which no explanation had been provided as to why the claimant was unsuccessful in his applications. Lord Leggatt concluded that an inference could in appropriate circumstances be drawn from the fact that a decision maker did not give evidence, but that there was no error of law in the Employment Tribunal failing to do so in the circumstances of the case. The case was not about an employer having given false or inconsistent reasons for treatment or not giving reasons to a claimant but providing them to others of a different race. I do not accept that Lord Leggatt held that any primary findings of fact the Employment Tribunal made about anything said, or not said, about the reason for treatment by the respondent could never be relevant at the first stage.
Section 136 EQA is fundamentally about assuming that there is no non-discriminatory explanation at the first stage, rather than ignoring anything that was said by he employer at the time of the treatment. In Hewage v Grampian Health Board [2012] UKSC 37 , [2012] ICR 1054 Lord Hope stated at paragraph 31:
If I am wrong in my analysis above, and anything said by the employer that relates to the reason for treatment must be ignored at the first stage when applying section 136 EQA , it probably makes relatively little difference. If the respondent has given false or inconsistent reasons for the treatment, or has failed to give any reason when reasons have been provided to employees of a different race, that might be relied on in a King v Great Britain China Centre [1992] 516 analysis, as was applied before the burden of proof provisions were introduced, as a result of which the Employment Tribunal would look to the employer to provide a non-discriminatory explanation for the treatment. That would be a little surprising as it would mean that a provision designed to make it easier for an employee to prove discrimination in certain circumstances made it more difficult to do so, but it is a possible analysis, if not the one I favour. Where such primary findings of fact arise it is probably wise for an Employment Tribunal to analyse them on a Section 136 EQA and King basis in the alternative.
Whatever the analysis, the Employment Tribunal should focus on whether the facts that it has found suggest the possibility of unlawful discrimination because of the relevant protected characteristic. In Madarassy the Court of Appeal stated that "could conclude" must mean "a reasonable tribunal could properly conclude" on a consideration of all of the evidence. In Laing Elias J (P) stated "the focus of the tribunal's analysis must at all times be the question whether they can properly and fairly infer race discrimination".
The Grounds of Appeal
The challenges to the Employment Tribunal's direction as to the law and application of the legal tests
The Employment Tribunal stated in its direction as to the law, after specifically directing itself as to section 136 EQA , that:
On a proper reading of the judgment, when the Employment Tribunal referred to taking "into account the respondents' explanation" at the first stage, it was referring to any reason it has given for the treatment that might support the drawing of an inference, as opposed to any "other explanation" that might disprove discrimination. The fits with the reference in the second sentence to a "non-discriminatory explanation" at the second stage of a section 136 EQA analysis.
Further, the Employment Tribunal did not in the circumstances of the case focus on any reasons for the treatment given by the respondent at the first stage, directing itself specifically at the first stage the analysis was to be on the assumption that there was no explanation for the treatment: "We considered whether, in the absence of an explanation for the delay, there was a prima facie case of less favourable treatment on grounds of race" and at paragraph 118 "We considered whether to draw adverse inferences from our primary findings of fact that in the absence of an explanation, the Claimant was treated less favourably because of his race". I do not accept that the Employment Tribunal erred in its direction as to the law in any material sense.
The respondent contends that the Employment Tribunal relied on the absence of an adequate explanation from Ms Wallen for delaying in provision of feedback at the first stage of deciding whether the burden of proof had shifted. In its findings of fact the Employment Tribunal stated:
The Employment Tribunal returned to this in their analysis of why the burden shifted quoted above. On a proper analysis I consider that the Employment Tribunal concluded that the delay in Ms Wallen providing feedback was contrary to the respondent's policy and that there was nothing that would have prevented it being provided earlier. I do not accept that involved the Employment Tribunal taking account of the lack of an "other explanation", in the sense of one negating discrimination, in deciding that the burden of proof had shifted.
On a proper analysis of the judgment as a whole I consider it is clear that the Employment Tribunal considered whether an inference should be drawn that the delay in providing feedback was materially influenced by the claimant's race. The analysis did not significantly rely on a hypothetical comparator. When the Employment Tribunal referred to considering "whether a hypothetical, white comparator would have had their written feedback delayed" it was doing no more than stating that it was looking for material from which an inference could be drawn. If there was such material and the respondent failed to provide some "other explanation" it would draw an inference of discrimination; that the claimant would have been treated differently if he had been white. The analysis was not based on a detailed construction of a hypothetical comparator as an analytical tool. The Employment Tribunal was doing little more than reminding itself it was looking for evidence of discrimination.
Conclusion on the first three grounds of appeal
I have concluded that the Employment Tribunal did not misdirect itself in law or misapply the relevant legal principles.
The challenges to the analysis of the Employment Tribunal
The final two grounds, that I will deal with together, challenge the analysis of the Employment Tribunal. The types of error of law that can relate to factual findings were summarised by Lady Haldane in Granger v Scottish Fire & Rescue Service [2025] EAT 90 :
The limited scope for challenges to decisions of an Employment Tribunal was emphasised by the Court of Appeal in DPP Law Ltd v Greenberg [2021] IRLR 1016 .
In Efobi Lord Leggatt stated that:
In this appeal it is important to have in mind the specific inference the Employment Tribunal concluded could be drawn from the primary findings of fact. The Employment Tribunal held that the respondent delayed in providing feedback to the claimant because of his race. The reference the Employment Tribunal made to a hypothetical comparator emphasised that it was considering whether there was any reason to think that the claimant would have received feedback more speedily had he been white. The oddity of the conclusion of the Employment Tribunal was that having found that the burden had shifted to the respondent to establish that the rejection of the claimant's application for promotion was in no sense whatsoever because of his race, it found that the burden was discharged, because he failed in the application because he genuinely scored lower than the successful candidates. However, the delay in providing feedback, about that non-discriminatory decision, was itself because of the claimant's race. A white employee would have received feedback more rapidly.
I will consider grounds 4 and 5 together.
I have concluded that the Employment Tribunal did take account of irrelevant factors in its analysis. The claimant might have brought a complaint that the delay in his feedback was an act of victimisation because he had complained of discrimination, but that was not a complaint before the Employment Tribunal. Much of the analysis might have been relevant to a victimisation complaint but did not logically suggest direct race discrimination in the delay in providing feedback. What the Employment Tribunal had to consider was whether its primary findings of fact were such that it reasonably could conclude that the reason for the delay in providing feed back was because of the claimant's race.
I do not consider that the primary findings of fact; that "the delay was poor", the "verbal feedback was bare", that the "response from Ms Wallen inadequate", that the "the very brief, written feedback gave no additional or meaningful detail", that there was "no explanation as to why she [Ms Wallen] could not simply have provided her own feedback" or that the respondent did not "comply with its own policies on storing its records" could reasonably lead to the conclusion that the reason for the delay in providing the feedback was because of the claimant's race. These were essentially descriptions of the treatment about which the claimant complained. They might have been relevant to a complaint of victimisation but that was not before the Employment Tribunal. They might have been relevant to the complaint that the rejection of the claimant's application for promotion was direct discrimination, but the Employment Tribunal concluded that despite the burden of proof having shifted to the claimant on that complaint, it had been discharged.
The Employment Tribunal relied on the respondent's knowledge of the claimant's application history and his desire for prompt feedback as a reason why the burden shifted. I have concluded that is irrelevant to the question of whether the feedback was delayed because of his race. The Employment Tribunal relied on the fact that the claimant is black, while those who were appointed (and those who were already in post) were white. That was material to the burden of proof shifting in the lack of promotion complaint, but not to whether the delay in providing feedback was because of the claimant's race. The fact that the claimant had raised "issues of the lack of recruitment of BAME staff", a "serious grievance" and "a wider systemic issue in the lack of diversity in management" might have been relevant to a victimisation complaint, but was not to the assertion that feedback was delayed because of the claimant's race. The analysis of the Employment Tribunal was based on factors that did not logically suggest that the delay in providing feedback to the claimant could have been because of his race.
Disposal
I have concluded that this is one of those cases in which there is only one possible answer. The primary facts found by the Employment Tribunal could not reasonably support a finding that the reason for the delay in the provision of feedback to the claimant was because of his race. The burden did not shift to the respondent and so the appeal is allowed and the finding of discrimination set aside.