13 August 2014

In McMillan v Airedale NHS Foundation Trust, the Court of Appeal recently decided that an employer could not impose a more severe disciplinary penalty following an internal appeal, as the employer’s disciplinary procedure didn’t include an express right to do so. The employer, an NHS Trust, took disciplinary action against Miss McMillan, upholding allegations of misconduct and issuing her with a final written warning. The employee unsuccessfully appealed against this decision, and the appeal panel planned to reconvene to consider whether to increase the final warning to a dismissal. Because the NHS Trust had incorporated a formal and detailed disciplinary procedure into the employee’s contract, which did not contain a right to increase a sanction on appeal, Miss McMillan was able to obtain an injunction preventing the Trust from dismissing her.

The Court of Appeal endorsed this decision, finding that the Trust could not increase the sanction on appeal without a contractual provision entitling it to do so, concluding that to find otherwise would be inconsistent with the terms of the contract and Acas guidance. The Court reasoned that employers have an appeal process for the protection of employees, and that it made little sense if appeals can make matters worse for an employee, particularly if the decision of the appeal is said to be final.

In practice, employers should be wary of seeking to increase disciplinary sanctions at the appeal stage unless their contractual disciplinary and appeals procedures explicitly allow them to do so. Even is a procedure permits it, it may well be difficult to justify a more severe sanction. Where an employer wishes to apply a greater sanction on appeal, it will be sensible to allow the employee a further right to appeal the increased sanction.

If you would like more information, or specific advice, please contact Roger Bull.

Key contact

Roger Bull

Roger Bull Managing Partner

  • Managing Partner 
  • Employment Disputes
  • Strategic HR Projects

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