Consistency

It is a fundamental principle of fairness that rules must be applied consistently. This does not, however, mean that the outcome will always be the same, because each employee’s circumstances are different. Even so, evidence of inconsistency is important, especially where:

• the employer’s past behaviour, for example, ignoring misconduct or handing out more lenient punishments, has lulled employees into a false sense of security, making it unfair to dismiss for breach of the rule without first warning employees of a change of approach;

• more lenient behaviour towards others, past or present (or towards the dismissed worker on past occasions) suggests untruthfulness about the reason for dismissal. This kind of evidence is particularly useful in claims for interim relief (see page 60);

• the employees’ circumstances are truly identical, meaning that different treatment cannot be justified. This will be rare; or

• there are issues of discrimination or trade union victimisation.