Can an employer increase the disciplinary sanction on appeal?

ACAS have published some guidance called ‘Discipline & Grievance At Work’ which is separate guidance from the statutory Code of Practice on disciplinary and grievance procedures.  In that guidance they say that an appeal should not result in an increase in penalty.  This issue was recently considered by the Court of Appeal in the case involving Airedale NHS Foundation Trust.  In that case McMillan, the employee, was subject to disciplinary proceedings and the panel upheld two complaints of misconduct against her and issued her with a final written warning.  She appealed against the sanction but the appeal panel upheld the complaints and proposed to re-convene to consider the appropriate sanction.  McMillan then brought proceedings in the High Court, seeking to prevent the NHS Trust from re-considering the appropriate sanction, arguing that the Trust’s disciplinary procedure did not allow the appeal panel to increase the sanction.  The disciplinary procedure provided that an employee ‘can appeal against a written warning or dismissal’, set out the appropriate procedure and stated ‘there will be further right of appeal’ but it didn’t spell out the Trust’s powers in relation to the appeal.  McMillan argued that if the Trust had the power to increase the disciplinary penalty, it would negate her express right to appeal.  The High Court accepted this argument and issued a permanent injunction, preventing the Trust from reconsidering the sanction.  The Trust appealed the matter to the Court of Appeal.

The Court of Appeal dismissed the Trust’s appeal.  It was held that, in the absence of a contractual provision detailing the Trust’s powers on appeal, it did not have a free rein.  The possibility of appeal under the procedure was provided for the employee’s benefit and it was not intended that the appeal should be a continuation of the disciplinary process, leaving all options open.  Furthermore, it was explicit that there would be no further right of appeal.  If the Trust were able to upgrade a written warning to dismissal on appeal, the employee would have no avenue to challenge the more serious sanction.

This highlights the need for employers, if they wish for appeal panels to have the ability to change the outcome by increasing a disciplinary sanction in appropriate cases, to reserve the right to do this, not only in the disciplinary procedure, but in the contract of employment.