Recruitment and discrimination: should you provide feedback to unsuccessful candidates?

The appeal concerned whether a significant delay in providing written feedback following an unsuccessful promotion interview could, on the facts found by the Employment Tribunal (ET), logically support an inference of direct race discrimination. 

Background to the claim

Mr Sodola, a Black African employee of the London Ambulance Service NHS Trust, applied for a team manager role in April 2020. It was his fourth attempt at securing the position. He was interviewed on 26 May 2020 and scored 7 out of 15, whereas the successful candidates (who were all white) scored between 9 and 14. The ET accepted that these comparative scores provided a non‑discriminatory explanation for the decision not to appoint him, and that the non‑appointment was not an act of direct race discrimination. 

But the tribunal did find that the Trust had discriminated in relation to his request for feedback. He was given brief verbal feedback in early June 2020, but did not receive written feedback until almost three months after the interview. 

The tribunal considered this delay, together with the claimant’s wider concerns about a lack of career progression for Black and Minority Ethnic staff, sufficient to show a prima facie case of race discrimination. Since it did not accept the employer’s explanation for the delay as credible, it held that the burden of proof had shifted and the employer had to demonstrate that its delay was not due to the claimant’s race. 

The law

Section 136 of the Equality Act 2010 sets out how the burden of proof works in discrimination claims. 

The claimant must first prove facts from which a tribunal could decide, in the absence of any other explanation, that unlawful discrimination has occurred. This requires the claimant to establish primary facts which are capable of supporting an inference of discrimination. 

If the claimant satisfies this the burden shifts to the respondent, who must then show that it did not contravene the relevant provision - in other words, that the treatment was not because of the protected characteristic. 

EAT decision

The Trust appealed, arguing that the ET had misapplied section 136. The EAT had to consider what constitutes “facts from which the court could decide” that discrimination had occurred, and what is meant by “any other explanation” at the first stage of the burden‑shifting exercise. 

It found that the natural reading of section 136 is that an “other explanation” is one which demonstrates that the treatment complained of was not discriminatory. Tribunals are entitled to consider the surrounding circumstances when deciding whether the claimant has crossed the initial evidential threshold. 

The two‑stage structure is intended to promote fairness, not impose mechanical constraints. 

Why could the tribunal’s reasoning not stand?

The EAT found that the tribunal had relied heavily on factors that were, at best, weakly connected to the specific allegation that the delay was an act of discrimination. 

It accepted that the delay was poor practice and had been exacerbated by administrative missteps and the pressures of the Covid‑19 pandemic. But, the tribunal had not identified any primary facts that logically connected the delay to the claimant’s race. The non‑appointment itself had been found to be non‑discriminatory on objective scoring and this significantly weakened any suggestion that the subsequent delay in feedback was motivated by his race. 

The tribunal had also relied on the claimant’s repeated concerns about BAME progression, the Trust’s shortcomings in its record‑keeping, and the panel chair’s decision not to provide interim feedback. While such matters may be relevant in other contexts, such as a victimisation claim, they were not probative of direct discrimination relating to the timing of feedback. 

The EAT concluded that there was simply no coherent chain of reasoning linking the established facts to a discriminatory motive. The claimant had therefore not established a prima facie case, and the burden of proof did not shift to the employer. 

The EAT allowed the appeal and set aside the finding of direct discrimination.

Practical implications for employers

There's usually no requirement for employers to provide candidates with feedback about why they were unsuccessful - even after an interview. But, if you say will give feedback, make sure that you respond to any request within a reasonable time-frame. 

If you have a policy of not providing feedback, make sure that candidates are aware of this. If challenged you can legitimately argue that you are treating this candidate in exactly the same way as any other unsuccessful candidate. 

Bear in mind that candidates can make a data subject access request for information that you hold on them, which may include scores and interview notes etc. That doesn't mean that you should keep hold of these records “just in case”. You must balance your need to retain such records with your obligations under data protection laws, such as the Data Protection Act 1998, which requires personal data to be kept for no longer than necessary. 

Generally this means that you should not hold onto recruitment records beyond the statutory period in which a claim may be brought unless there is a clear business reason for doing so. So, 6-12 months should be sufficient.

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