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Can an employer increase a disciplinary sanction on appeal?

View profile for Chris Dobbs
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McMillan v Airedale NHS Foundation Trust

The Court of Appeal (CA) held in this case that an NHS Trust’s disciplinary policy did not permit it to impose a more severe sanction upon an employee’s appeal.

Ms McMillan, a consultant employed by the Trust, received a final written warning against which she appealed under the Trust’s contractual disciplinary policy, which did not provide an express right to increase any sanction upon appeal. During the appeal process, before the issue of a sanction had been decided, Ms McMillan attempted to withdraw her appeal and commenced High Court proceedings for an injunction to prevent the Trust from reconvening the appeal hearing to consider sanction. She believed it was highly likely the Trust was going to increase the sanction from a final written warning to a dismissal.

The CA upheld the decision to grant the injunction. The CA considered the non-statutory ACAS Guide on Discipline and Grievances relevant to construing the disciplinary policy and concluded that the policy prevented the Trust from increasing a sanction on appeal, because the right to appeal is provided for an employee’s benefit or protection.

The CA considered it would be ‘a surprising result’ if a sanction could be increased upon appeal; if a warning was increased to dismissal; the employee would have no right under the policy to appeal against the dismissal. It further stated that if an employer wished to have the right under its disciplinary procedures to increase the sanction on appeal it must be expressly provided for in the disciplinary policy.

In Practice

Employment Partner Kate Fretten says, “This case demonstrates that if an employer ever wants the ability to increase the sanction given at a disciplinary on appeal, it must expressly state it in its disciplinary policy.” It will also be sensible to give the employee a further right of appeal against the increased sanction. Any employers wishing to consider amending their disciplinary policies on this point should contact us for further advice.

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 andKate or Paul will be happy to discuss it with you.