Equitable Treatment and Past Practice
Have the rules, orders, and penalties been consistently enforced?
Equitable treatment means that people involved in a particular situation will be treated in a similar manner unless the investigation of the following questions leads to a basis for treating them differently:
- Is the nature of the offense identical for all the employees involved?
- Is an instigator more at fault than others involved?
- Is this the first offense for one employee, but not the other?
- Has one employee been warned before, but not the other?
- Are there differences between the positions of the employees involved that would impact their accountability, eg. a supervisor vs. a subordinate or a new employee versus a senior person?
Past Practice refers to consistency over a period of time rather than a single event. How have you handled this type of situation in the past? Have you ignored it? Have you disciplined quickly and harshly? Has your response varied?
If you have been all over the field in your responses to a particular event, you have not established a past practice and you will have difficulty showing that just cause exists for taking any disciplinary action. For this reason, it is advisable to establish practices that meet the following three components of a past practice. A past practice exists only if you:
- have a consistent response or method of handling a similar event,
- over a substantial period of time, and
- which people have come to expect.
There is no magical number of times it takes to create a past practice. Once or twice does not; ten or more times does and employee expectations will be a critical factor for those situations between these numbers.
- First, employees have to be told clearly, explicitly, and preferably in writing that the practice is changing.
- Describe the new practice and its rationale.
- Identify an effective date and provide for a break-in period, particularly if it is a long standing practice or if it is going to require learning new habits.