News Updates

Increasing disciplinary sanction on appeal

Monday 28th July 2014

The Court of Appeal has held that a power to increase a disciplinary sanction on appeal cannot be implied into a contractual disciplinary procedure which is silent on the issue.

In McMillan v Airedale NHS Foundation Trust, Mrs McMillan was subject to two complaints of misconduct against her and received a final warning under the Trust’s contractual disciplinary procedure.

On internal appeal, the charges were upheld and the appeal panel proposed to reconsider the appropriate sanction, which would mean the potential termination of Mrs McMillan’s employment. Before the panel reconvened, Mrs McMillan lodged High Court proceedings and obtained an injunction restraining the Trust from reconsidering the sanction.

The CA has now dismissed the Trust’s appeal. It found that the right of appeal was for the employee’s benefit and not intended to be a continuation of the disciplinary procedure. The policy expressly stated that the appeal was the final stage and the CA held it would be a surprising result if an employee could not appeal against a more serious sanction. The CA also took account of the ACAS guide “Discipline and grievance at work”.

Therefore, if an employer wants the ability to increase a disciplinary sanction at the appeal stage, the relevant procedure must expressly provide for this.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.