Consistency of Sanction
by Philip
We are often asked whether it is permissible to impose two different sanctions on two different employees for the same offence. The answer, according to London Borough of Harrow v Cunningham [1996], is that it may be, provided that there is a satisfactory explanation for disparate treatment. As long as any explanation is not so irrational that no employer would reasonably use that explanation, different sanctions can be fair. Explanations that employers could reasonably use to justify disparate sanctions could include mitigating factors, aggravating factors, length of service and disciplinary history.
Employers are also often surprised to hear that if an offence, for example, a theft has been committed and the employer, after a fair and thorough investigation, can not identify the culprit but can establish it must be one of a limited number of employees, it can be fair to dismiss them all even though one or more of them have almost certainly done nothing wrong!
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