The importance of consistency



It is a fundamental principle of fairness that rules must be applied consistently. But this does not mean that the outcome will always be the same, because each employee’s circumstances are 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 was 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 where evidence of different treatment may result in an unfair dismissal. 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, for example, concealing a hidden motive, such as a wish to remove a trade union activist, or because the employer is engaging in (conscious or sub-conscious) discrimination – see Chapter 7; or



• where there truly is no difference between employees’ circumstances and the two decisions are “genuinely parallel”, meaning that different treatment cannot be justified (this will be rare).


The leading case, setting out these three exceptions, is Hadjioannou v Coral Casinos Limited [1981] IRLR 352.