Case law: consistency when disciplining or dismissing employees

A recent legal decision has clarified that employers can punish the same offence differently if the surrounding circumstances are different.

Two employees dismissed for "moonlighting" claimed unfair dismissal, relying on the fact that another employee in the firm had previously committed the same offence, but had only been given a final written warning. The tribunal at first instance found the dismissals to be unfair.

However, the EAT overturned the decision, pointing out that the previous employee had 30 years' service and had shown remorse. The two who were dismissed had just finished their apprenticeships, and had lied when challenged. The EAT reiterated the point that an employer can justify departure from previous practice when the surrounding circumstances are different.