When will different treatment make a dismissal unfair?

An employer should always take into account how it treats other employees, but inconsistent treatment of others for the same offence is only likely to be relevant in the following three scenarios:

• There is evidence that employees may have been lulled into a false sense of security by an employer’s past behaviour, leading them to believe that certain kinds of behaviour will be tolerated or will not result in dismissal;

• More lenient behaviour towards others in the past suggests that the employer may not be putting forward the real reason for the dismissal; and

• The circumstances of two employees are truly parallel, so that it is not reasonable to dismiss one and not the other.

Because each employee’s circumstances must be looked at individually, the circumstances of two employees are rarely truly parallel.

Remember that arguments based on different treatment of comparable employees are likely to be highly relevant in claims involving allegations of discrimination or victimisation (see Chapter 6 - Discrimination) or claims for interim relief (see Chapter 5 - Union and collective organisation).