Precedent and consistency


Under the Acas Code, employers must act consistently when disciplining staff. The TUC suggests that reps should investigate how managers treated other staff in similar circumstances, including whether similar conduct was tolerated or whether only warnings were used. 


The requirement for consistency does not mean the outcome will always be the same. Arguments about fairness that rely on comparisons with past treatment of other employees rarely succeed before an employment tribunal. This is because individual circumstances, such as the employee’s record, are nearly always different, and it will often be judged fair to impose different penalties for the same offence. 


The treatment of other employees in the past is only likely to be relevant in three scenarios:


• where there is evidence of employees being lulled into a false sense of security by the employer’s past behaviour, leading them to think certain kinds of behaviour will be tolerated, or at least will not result in dismissal;


• where more lenient behaviour towards others in the past suggests the employer is not putting forward the real reason for the dismissal; and


• where the circumstances of two employees are truly parallel, so that it is not reasonable to dismiss one without the other (Wincanton PLC v Atkinson & Anor UKEAT/0040/11/DM).


Arguments about the treatment of other current or past workers (or the member in the past) are likely to be highly relevant when discrimination or trade union victimisation are suspected. 


“Making an example” of workers to deter others is likely to be unfair. Managers should not single out one member for more serious sanctions without clear justification: