Increasing disciplinary sanctions on appeal: can it be done?

RCJ portrait 146x219Can disciplinary sanctions be increased on appeal? Michael Wright and Philip Farrar report on a recent Court of Appeal ruling.

In McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031 Mrs McMillan was employed by Airedale NHS Foundation Trust (the Trust) as a consultant obstetrician and gynaecologist. Following an adverse incident in June 2010, the Trust initiated disciplinary proceedings against Mrs McMillan based on an allegation that she had given inconsistent accounts about what had occurred.

The Trust’s disciplinary procedure was contractual. It included by reference the ACAS Code of Practice on Disciplinary and Grievance Procedures. Following a disciplinary hearing, two complaints of misconduct were upheld against Mrs McMillan. She was issued with a final written warning in November 2011.

Internal appeal

Mrs McMillan appealed the Trust’s decision. Her grounds of appeal included a challenge to the disciplinary panel’s findings and reasoning. Given the range of Mrs McMillan’s criticisms of the disciplinary panel’s findings, the appeal hearing was convened as a full re-hearing of the evidence, which inevitably would lead to the appeal panel forming its own conclusions about the conduct charges.

At the hearing, the appeal panel upheld the charges against Mrs McMillan. In most cases, this would have been the end of the matter in terms of internal processes. However, in this case, the appeal panel decided to reconvene to review the decision to award Mrs McMillan a final written warning.

Prior to the reconvened appeal hearing, it became clear that the Trust was calling for Mrs McMillan’s dismissal. She therefore withdrew her appeal and asserted that the panel had no further jurisdiction to consider sanction.

The Trust refused to allow Mrs McMillan to withdraw her appeal. In response, she sought a court injunction to prevent the Trust from reconvening the hearing and/or to restrain the Trust from increasing the sanction.

The claimant’s contract and the court’s decision

The court upheld Mrs McMillan’s complaint and considered that the Trust could not increase the sanction on appeal.

Of crucial importance was that the disciplinary procedure was incorporated into Mrs McMillan’s contract. Therefore, she could challenge the Trust’s actions in the high court by way of an injunction. If the policy had been non-contractual, she would have had to wait until after the decision to dismiss and then bring a claim for unfair dismissal.

The policy set out that an employee could appeal against written warning or dismissal and indicated that there would be no further right of appeal. It was also noted by the court that:

  • appeal provisions in general are for the employee’s benefit and, accordingly, the appeal should not be a continuation of the disciplinary process leaving all options open to the panel;
  • as the procedure was explicit that there was to be no further right of appeal, had the Trust dismissed Mrs McMillan on appeal, she would have had no right of appeal against the dismissal; and
  • the provisions of the ACAS guide ‘Discipline and grievance at work’ were significant to the issues. While the guide is separate from the statutory Code of Practice, it serves to provide guidance about the code. The ACAS guide states that an ‘appeal must never be used as an opportunity to punish an employee for appealing a decision and it should not result in any increase in penalty that may deter individuals from appealing’.

For these reasons, it was held that the imposition of an increased sanction on appeal would amount to a breach of Mrs McMillan’s contract of employment.

Proper provision needed to increase a sanction

It was recognised that, in principle, an employer may increase a disciplinary sanction on appeal. However, in order to do so, it must be explicitly set out in the disciplinary policy. In McMillan, that was simply not the case, as the Trust’s own procedure did not make clear to Mrs McMillan that she risked a higher penalty if she chose to appeal.

Even where a disciplinary policy is not contractual, it is likely that an employment tribunal will require it to state that disciplinary sanctions can be increased on appeal for a fair dismissal in these circumstances. In addition, if an employee was dismissed on appeal, it is likely that a further internal appeal from that decision would be required in the interests of natural justice and to avoid an unfair dismissal.

Michael Wright is an associate and Philip Farrar is a partner at Hill Dickinson. Michael can be contacted on 0161 817 7266 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Philip can be reached on 0151 600 8615 or This email address is being protected from spambots. You need JavaScript enabled to view it..