What is the difference between discrimination and unfair treatment in UK employment law?

Unfairness is not discrimination. Tribunals know this. Too many HR teams do not.

A recent EAT decision, London Ambulance Service NHS Trust v Sodola, is a timely reminder of how discrimination claims are actually determined under s.136 of the Equality Act 2010.

Discrimination cases follow a two-stage burden of proof process. The two stages are not separate evidential hearings — the tribunal hears all the evidence and applies the s.136 framework when analysing its findings.

Stage 1: The employee must establish primary facts from which a tribunal could conclude discrimination. It is not enough to show unfairness, delay, inconsistency or a flawed process. There must be facts which logically support an inference that the treatment was because of a protected characteristic.

Stage 2: Only if that threshold is crossed does the burden shift to the employer to prove that the treatment was in no sense because of the protected characteristic.

In Sodola, the EAT held that the tribunal had moved too readily to an inference of discrimination.

Procedural failings and weak explanations, without more, did not justify shifting the burden from employee to employer.

Unfairness is not the same as discrimination.

For employers, the practical point is straightforward:

Strong and structured evidence against discrimination being a factor can prevent Stage 1 from ever being satisfied.

That means:

1. A clear contemporaneous record of the decision-maker’s genuine rationale.
2. Consistency between the outcome letter, the ET3 and oral evidence.
3. Demonstrable consistency of treatment across comparable cases.
4. Evidence that the protected characteristic did not feature in the decision-making process (or was properly considered where relevant).

Not “we didn’t discriminate.” But:

Here is what we did. Here is why. Here is the evidence.

It is no good for HR to hope that such evidence appears once a claim is lodged.

Disability discrimination claims, in particular those involving neurodivergent conditions such as autism and ADHD, are among the fastest-growing areas of Employment Tribunal litigation.

They can be brought from day one and compensation is uncapped.

So, HR must ensure that the organisation routinely and systematically does not discriminate — and that it has robust evidence to demonstrate that fact, both in individual cases and at organisational level.

The real risk is not weak defence at Stage 2. It is failing to prevent Stage 1 from arising at all