This week, the Court of Appeal in McMillan v Airedale NHS Foundation Trust (the Trust) addressed the question of whether an employer is able to increase the severity of a disciplinary sanction as part of its appeal process. In this case, the Court held that the Trust did not have the power to increase a sanction from a written warning to a dismissal when Miss McMillan appealed.
As the relevant contract of employment was silent on the Trust’s powers to increase a sanction on appeal, the Court of Appeal would not imply such a power. The decision emphasises that an appeal is not for the benefit of an employer, nor is it an opportunity to continue the disciplinary process.
Miss McMillan was employed as a consultant obstetrician and gynaecologist by the Trust. Disciplinary proceedings were issued against Miss McMillan which concerned a patient who had encountered complications when giving birth by caesarean section. Following an investigation, the Trust issued Miss McMillan with a final written warning which she appealed. A rehearing was arranged to reconsider the sanction imposed but before this took place, Miss McMillan withdrew her appeal.
The Trust argued that they were able to reconsider the sanction despite Miss McMillan’s withdrawal of her appeal. In particular, having upheld the complaints against Miss McMillan on appeal, the Trust considered that dismissal was an available option to it. In response, Miss McMillan argued that the disciplinary procedure did not allow the appeal panel to increase the sanction and applied to the Court to prevent the Trust from reconsidering the sanction. At first instance, the Court agreed with Ms McMillan and issued an injunction preventing the Trust from reconsidering the final written warning. The Trust appealed to the Court of Appeal.
The Trust’s appeal was rejected and in his judgment, Lord Justice Floyd highlighted the purpose of disciplinary and appeal procedures. In the absence of an express contractual provision setting out the extent of an employer’s powers, the default position is that an appeal is for the employee’s benefit and should not be used as a continuation of the disciplinary process.
This decision demonstrates the benefit in getting a disciplinary outcome decision correct first time round. An appeal may be useful in correcting procedural flaws but unless a contractual disciplinary policy explicitly says so, an appeal should not be used as a way of escalating the original sanction. To do otherwise will render an employee without a line of appeal against a potentially more serious sanction imposed at the appeal stage.
Whilst employers could consider amending their contracts to include an express right to increase a disciplinary sanction at the appeal stage, we would sound a strong note of caution against doing so. Whilst employers can contractually include a right to increase a disciplinary sanction at the appeal stage, this would not be in line with the ACAS Code, it is likely to deter employees from accessing their right to appeal and could create employee relations issues.
Instead, employers should ensure disciplinary officers and managers understand the full range of responses available at the disciplinary hearing and use this as an opportunity to get it right the first time. If new facts come to light after the original disciplinary outcome that might potentially justify a more serious sanction, consideration can be given to starting a fresh disciplinary process to deal with any new issues. In situations where an appeal manager is uncomfortable with the previous disciplining officer’s decision, the appeal manager can document their concern with the choice in sanction in their appeal outcome. For example, there is no harm in an appeal manager communicating that they would have chosen dismissal as a sanction had they been involved at an earlier stage in the disciplinary process.