Posted by Richard White, Partner
No right to increase a disciplinary sanction on appeal
The Court of Appeal’s recent decision in McMillan v Airedale NHS Foundation Trust shows that employers can’t increase disciplinary sanctions on appeal, unless their disciplinary policy says otherwise.
Miss McMillan went through a disciplinary process at the Trust and was issued with a final written warning. She appealed the warning. The appeal panel upheld the findings of misconduct but then announced that it would reconvene to decide on the appropriate sanction.
As the Trust’s disciplinary procedure was contractual, Miss McMillan was able to apply to the High Court for an injunction. The High Court granted the injunction to stop the Trust from reconsidering the sanction and increasing it to dismissal. The Trust then appealed to the Court of Appeal to decide the issue.
The Court of Appeal decided that the Trust’s disciplinary procedure did not allow it to increase a disciplinary sanction. The Trust’s policy did not state whether sanctions could be increased on appeal and the Court of Appeal said that it would not imply a right to increase a sanction on appeal as an appeal is intended to be for the employee’s benefit.
The Trust’s policy stated, as many disciplinary policies do, that there was no further right of appeal. The Court of Appeal decided that if the Trust was able to increase the sanction on appeal this would have the “surprising result” of Miss McMillan being able to appeal against the warning, but not the more serious sanction of dismissal.
What does this mean for employers?
The Court of Appeal decided that there was nothing wrong in principle with an employer reserving the right to increase a disciplinary sanction on appeal in its disciplinary policy. However, to be able to do that the employer’s policy would need to state explicitly that the employer can increase a sanction on appeal but, if it does, then the employee must have a right to appeal against the increased sanction.
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