London Ambulance Service NHS Trust v I Sodola (Debarred)

Under section 136 of the Equality Act 2010, the tribunal must decide at the first stage whether the facts found could reasonably support the particular inference that treatment was because of the protected characteristic. It assumes that there is no non-discriminatory explanation, but may consider primary facts about the employer’s outward conduct, including false or inconsistent reasons.

Poor treatment, inadequate feedback and procedural failures do not by themselves support an inference of direct race discrimination. Facts which may indicate victimisation for raising discrimination concerns are not, without more, evidence that treatment was because of race. The factual basis must logically support the precise discriminatory inference alleged.

The claimant, a black African man, was unsuccessful in an application for promotion to Team Manager. The Employment Tribunal rejected his complaint that the non-appointment was because of race, but upheld his separate complaint that a delay in giving written feedback was direct race discrimination.

The Tribunal found that the feedback was delayed, minimal and handled poorly. It also relied on the claimant’s prior unsuccessful applications, the appointment of white candidates, his concerns about diversity and career progression, and the employer’s response to those concerns.

The employer appealed. The central issue was whether those primary facts could reasonably support an inference that the delay in giving feedback, rather than the non-appointment, was because of the claimant’s race under section 136 of the Equality Act 2010.

1. Appeal allowed. The Employment Tribunal’s finding that the delay in providing feedback was direct race discrimination was set aside.

2. Section 136 of the Equality Act 2010 requires the tribunal at the first stage to ask whether the facts found could lead a reasonable tribunal properly to infer the alleged discrimination, on the assumption that there is no non-discriminatory explanation. The provision does not require the tribunal to disregard every primary fact concerning what the employer said or did at the time of treatment. Facts such as inconsistent or manifestly false reasons may be relevant as outward conduct. What must be left out of account is an explanation of the decision-maker’s subjective motivation which asserts a non-discriminatory reason.

3. The precise inference must be identified. Here it was that feedback would have been supplied more quickly had the claimant been white. The Tribunal’s findings of poor practice, bare feedback, inadequate handling by the interview panel and non-compliance with record-storage procedures described the treatment complained of. They did not logically indicate that its reason was race.

4. The claimant’s repeated applications, desire for prompt feedback, and the fact that successful candidates and existing managers were white did not support that inference. His complaints about a lack of diversity and career progression might have been relevant to a victimisation complaint, but no such complaint was before the Tribunal. They did not evidence direct discrimination in the timing of feedback.

5. There was only one permissible conclusion: the primary facts could not reasonably support an inference that the delay was because of race. The burden therefore did not shift to the employer under section 136, and the finding of discrimination was set aside.

• Employment Appeal Tribunal: Allowed the employer’s appeal and set aside the finding that delayed written feedback was direct race discrimination ([2026] EAT 6).
• Employment Tribunal: Judgment sent to the parties on 31 January 2023. It dismissed the non-appointment race discrimination complaint but upheld the complaint concerning delayed feedback.