Usually, the concept of fairness suggests that situations which are substantially the same in facts should attract the same outcomes and the employees involved should be treated in the same way. However, this is not always the case, as employees with long service (2 years or over) benefit from more protection from the law compared to employees with short service of less than 2 years.

An employer may want to give a lesser sanction to an employee who has worked for them for a long period of time as they have become a valued employee but may want to dismiss someone with short service for the same type of misconduct. Although an employee with less than 2 years’ service may not be able to make a claim for ordinary unfair dismissal, employers should still consider their actions carefully.

Although deciding outcomes of a disciplinary procedure and sanctions is within your power as an employer, if you give different sanctions to two employees involved in the same incident with the only difference that they have different lengths of service, you should have a justification you can rely on. Having this justification can also act as a defence in the event of a tribunal claim against you.

Case law directs that if the circumstances are truly parallel, and both employees are found to have carried out exactly the same conduct, then their sanctions should be the same. If one is dismissed but the other is not, then the first dismissal may be found to be unfair by an employment tribunal.

However, if there is a substantial difference between the conduct, then that can justify the different outcome, as the case of MBNA Ltd v Jones showed. For example, if an employee punches a colleague in the face at a work event and the second employee sends texts threatening physical violence to the first employee but outside of the work environment, both actions can be found to amount to gross misconduct. The employer is acting within his right to dismiss the first employee and give the second a final written warning. The employer is right to draw a distinction between the two actions, even though both employees were guilty of gross misconduct.