Disciplinary Sanction Could Not be Increased on Appeal

An employer who issued an employee with a final written warning could not increase the sanction to dismissal following the employee’s appeal.

In McMillan v Airedale NHS Foundation Trust, M appealed against a final written warning issued under the Trust’s contractual disciplinary procedure. The disciplinary procedure provided that the decision of the appeal panel was final. The appeal panel upheld the complaints against M and proposed to reconvene to reconsider the appropriate sanction. M sought an injunction to prevent the Trust from increasing the disciplinary sanction.

The Court of Appeal upheld the High Court’s decision that the employer could not increase the penalty on appeal. There was nothing in the disciplinary procedure which gave the employer the power to do so. A right of appeal is provided for the employee’s benefit. In addition, as there was no further right of appeal the employee would not be able to appeal the more serious sanction of dismissal. The Court of Appeal also considered it relevant that the Acas non-statutory guidance expressly states that an appeal should not result in an increased penalty.

The Court of Appeal stated that there is nothing wrong in principle with an employer reserving the right to increase a disciplinary sanction on appeal, but that right must be expressly provided for in the relevant procedure.

Whilst in principle an employer may reserve the right to increase a disciplinary sanction on appeal, employers would have to exercise such a right with caution, otherwise they risk a finding of unfair dismissal . Rights of appeal exist for the employee’s protection and the ability to increase the sanction would deter many employees from exercising their right of appeal. Employers should generally only exercise an express right to increase the penalty where new evidence comes to light during the course of the appeal suggesting that the misconduct is more serious than at first considered. The employer should also provide a further right of appeal in cases where the disciplinary sanction is increased.

Where new evidence comes to light on appeal and the employer does not have the right to increase the penalty, they would be best advised to start the disciplinary process afresh.