The importance of consistency




It is a fundamental principle of fairness that rules must be applied consistently. However, this does not mean that the outcome will always be the same, because every context will be different.
An employer’s decision to treat two employees differently will only rarely make a dismissal unfair. In MBNA Limited v Jones [2015] UKEAT/0120/15/0109, the EAT said that if it is reasonable for an employer to dismiss one employee, “the mere fact that the employer was unduly lenient to another employee is neither here nor there”.



There are three situations in which evidence of different treatment may result in an unfair dismissal (Hadjioannou v Coral Casinos Limited [1981] IRLR 352). These are:


• where the employer’s past behaviour, for example, ignoring breaches of a rule or handing out lenient punishments, has lulled employees into a false sense of security and they have not been warned of a change of plan to take a more punitive approach;




• where more lenient behaviour towards colleagues, or towards the claimant in the past, suggests that the employer is not telling the truth about the reason for dismissal and is concealing a hidden motive, such as a wish to remove a trade union activist or conscious or sub-conscious discrimination or victimisation — see Chapter 7; or




• where there truly is no difference between employees’ circumstances and the two decisions are genuinely parallel, so that different treatment cannot be justified.



Here is a good example of obviously unfair different treatment, leading to a finding of unfair dismissal: