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Employers need to tread carefully in situations where disparity of treatment arises. Natalie Jeffries, an associate from Burges Salmon, looks at the lessons from key cases where employees in an organisation were dealt with differently for the same types of misconduct.
An employee has been repeatedly swearing on the shopfloor. You want to take them to task but up until now such conduct by colleagues has been accepted. So what can you do?
Two employees are embroiled in the same disciplinary incident, one has eight years’ impeccable service, and the other has been with you a couple of years and is nothing but trouble. Can you dish out different penalties or will that land you in hot water?
In both scenarios, the ability (or otherwise) to mete out different sanctions will need to be justified to avoid accusations of unfair treatment and potential employment tribunal claims. So how can employers justify disparity of treatment when dealing with disciplinary incidents?
As referenced above, disparity of treatment can arise in two different ways and guidance on both is established in the case of Hadjioannou v Coral Casinos Ltd. The first scenario, where you have a “track record” for applying a particular sanction, can be dealt with relatively easily. In a nutshell, it will be difficult to stray from established past practice unless you have a justifiable reason.
Hadjioannou makes it clear that, when disciplining an employee, you need to consider