When somebody appeals against a warning they will be hoping to either have the penalty reduced or the decision that the imposition of a warning was unfair in the first place. Can the penalty actually be enhanced? Can the decision maker decide that the original finding was too lenient?
In the majority of cases the answer will be ‘no’. The ACAS guidance says, “an appeal must never be used as an opportunity to punish the employee for appealing the original decision and it should not result in any increase in penalty as this may deter individuals from appealing”. Whilst the tribunals are not obliged to follow that guidance, in the case of Millen v Airedale NHS Foundation Trust in 2015 it gave considerable significance to this guidance. What was notable in that case was that the Trust’s disciplinary procedure did not have any power within it to increase the penalty, the court would not imply a right on the part of the employer. It noted that the function of the appeal was to protect the employee against unduly harsh treatment rather than protecting the employer from an unduly lenient manager.
There might be circumstances in which the evidence that emerges by the time of an appeal is so compelling the employer would be acting reasonably in deciding to dismiss, even if the procedure didn’t allow for that. In Haringey following the sad death of baby P two employees had previously been given warnings but after considering the matter afresh, the employer decided to dismiss: the subsequent claims of unfair dismissal were unsuccessful. In that case a new management team had been introduced who reassessed the gravity of the misconduct involved. The employees had not appealed against the original decision – the employer had decided to reopen the matter. It shows that an employer can impose a more severe penalty if there is a compelling need to do so.
In conclusion therefore, I suggest that if you wish to increase penalties on appeal you expressly reserve the right to do this in your disciplinary procedure and that you take care in how you exercise this.