201504 CM April

HR MATTERS
INCREASING A
DISCIPLINARY SANCTION
AT THE APPEAL STAGE
WHEN faced with a disciplinary
issue, employers need to keep
the terms of their disciplinary
procedure in mind – acting
otherwise in accordance with a policy
will have an impact on the fairness of any
subsequent dismissal. A carefully drafted
disciplinary procedure is also very important
at appeal stage. The Court of Appeal was
recently required to consider the fairness
of an employer's appeal procedure in
circumstances where an employer sought,
at appeal stage, to increase a disciplinary
sanction that had been already given to that
employee.
Contractual disciplinary policy
In the case of McMillan v Airedale NHS
Foundation Trust [2014], Miss McMillan was
employed at Airedale NHS Foundation Trust
as a consultant. The Trust’s disciplinary
procedure was incorporated into McMillan’s
contract of employment, making it a
contractual document. The disciplinary
procedure provided that an employee could
appeal against a warning or dismissal and
that there was no further right of appeal
following that initial appeal stage.
The Trust instigated disciplinary
proceedings against McMillan, and
following an investigation and disciplinary
proceedings, upheld allegations of
misconduct. McMillan was issued with a
final written warning, which she appealed
against.
Employee’s appeal
In an exchange of correspondence before
the appeal hearing, the Trust confirmed
that the appeal panel would consider the
evidence in relation to the allegations and
would be entitled to determine its own
outcome in terms of the sanction applied.
The appeal hearing then took place and,
having heard evidence and reached its
decision, the panel set out its findings in
a letter to McMillan. The letter concluded
by saying that the panel should go on to
decide what sanction should be imposed.
Disciplinary sanction
The appeal panel concluded that the
original decision had been a correct one
and that the allegations against her had
been well founded. In addition, however,
the appeal panel indicated that they felt
that it would be appropriate to reconvene to
reconsider the appropriate sanction.
Court's decision
Before the appeal panel could make its final
decision on sanction, McMillan applied to
the High Court for an injunction seeking
to prevent the Trust from increasing the
sanction to dismissal. At the initial hearing
of this injunction, the High Court held that
the employment contract did not allow the
appeal panel to increase the sanction and
issued the injunction, preventing the appeal
panel from taking this measure.
The Trust appealed to the Court of
Appeal (CA) but the appeal was dismissed,
with the CA agreeing with the High Court's
original decision. The CA held that there
was no express right in the contractual
disciplinary procedure to increase the
sanction on appeal and this did not mean
that the Trust had free rein to take whatever
step that it wished at appeal. Interestingly,
the CA said that the possibility of appeal
under the procedure ‘‘was there to benefit
the employee.”
The CA went on to say that the
procedure expressly provided that there
was no further right to appeal against the
decision reached at the appeal hearing.
This meant that if the Trust was able
to increase the sanction on appeal this
would mean that the employee would
have no further right to appeal against that
increased sanction, which goes against
the general principles of fairness. The CA
also referred to the ACAS guide 'Discipline
and Grievances at work' which expressly
states that an appeal should not result in an
increase in penalty.
Best practice
This case is a reminder that where an
employer has a contractual disciplinary
procedure, it is bound by the terms of
that procedure. Invariably, the scope of
an appeal would not usually extend to
increasing sanctions, and to do so would
conflict with ACAS guidance and would
usually constitute unfair practice.
If an employer does want particular
flexibility to increase sanctions on appeal
they would need to provide for an express
power to do so in the relevant procedure.
There would also need to be a further right
of appeal against that sanction.
This case can be distinguished from the
case of Christou and another v London
Borough of Haringey [2013] that involved
the two social workers involved in the
Baby P case. In this case, new facts came
to light that justified a fresh disciplinary
process. Eventually, as a result of that new
disciplinary process, the employees were
dismissed, notwithstanding that the original
disciplinary process had resulted in initial
sanctions of written warnings. Increasing
disciplinary sanction, or trying to unpick
and change the result of a disciplinary
process is very unlikely to be fair and will
only succeed in the most extreme set
of circumstances – as the Baby P case
illustrates.
Gareth Edwards is a partner
in the employment team at
Veale Wasbrough.
46 April 2015 www.cicm.com
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