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 rules to be applied consistently does not necessarily mean that the outcome will always be the same. Arguments about fairness which rely on comparisons with other employees in the past rarely succeed before an employment tribunal. This is because individual circumstances, such as the employee’s record, will nearly always be different, and it will often be judged fair for an employer 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 that employees may have been 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).

Remember that arguments about the treatment of other current or past workers are likely to be highly relevant when discrimination or victimisation are suspected, because discrimination is based on comparing the member’s treatment with that of other workers.