Employers need to specify right to increase disciplinary sanction on appeal
In the case, McMillan v Airedale NHS Trust, the Court of Appeal had to decide whether an employer had the scope to issue a sanction beyond a final written warning when that warning had been appealed by the employee.
Facts
McMillan, a consultant obstetrician and gynaecologist, was suspected of misconduct relating to her involvement in a serious patient incident which necessitated emergency surgery. Her employer initiated disciplinary proceedings against her. A disciplinary panel agreed with the accusation, and issued her with a final written warning. She appealed against this sanction. The appeal panel upheld the complaints against her and proposed to reconvene to consider what sanction would be appropriate.
However, McMillan, concerned that a worse sanction (in this case, dismissal) may be imposed on her, brought legal proceedings against the employee, seeking an injunction to prevent it from changing the sanction. In the High Court she argued that the employer’s disciplinary procedure did not allow the appeal panel to increase the sanction.
The employer’s disciplinary procedure permitted employees to “appeal against a written warning or dismissal”. It set out the appropriate procedure for this and stated that 'there will be no further right of appeal', but it did not spell out the employer's powers in relation to the sanction on appeal. The injunction was granted and the employer appealed.
Court of Appeal
The Court of Appeal decided that the sanction could not be increased and dismissed the appeal. In reaching this decision, it took into account the Acas guide ‘Discipline and grievances at work’ which, although not legally binding, states that appealing a disciplinary decision should not result in any increase in penalty as this may deter employees from appealing in the first place.
However, the Court of Appeal also went on to say that this did not mean that an employer could never increase the disciplinary sanction imposed on appeal. But, in order to be able to do this, an employer must expressly provide a right for it to do so in the disciplinary policy.
Comment
This ruling has implications for both employers and employees:
- Employers will not provide a specific right to increase a disciplinary sanction on appeal. They would be well-advised to review their policies, in order to avoid breach of contract claims and/or unfair dismissal claims arising out of procedures followed at the appeal stage.
- Employees will be able to anticipate whether or not a sanction can be changed, and tailor their legal approach accordingly.
- Managers conducting disciplinary appeal hearings need to be aware of what authority has been set out for the employer in its disciplinary procedures.
Following these rules should mean there will be fewer nasty surprises throughout the process for everyone involved.
Jacqueline McCluskey is an employment law partner at national law firm HBJ Gateley
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