In the recent case of McMillan v Airedale NHS Foundation Trust , the Court of Appeal had to consider whether the sanction of a final written warning issued by Airdale NHS Foundation Trust against Mrs McMillan could be increased on appeal.
Mrs McMillan had been called to a disciplinary hearing in line with her employer’s contractual disciplinary procedure. Two complaints of misconduct were upheld against her and she was issued with a final written warning. Mrs McMillan appealed. The appeal panel upheld the complaints, and then adjourned the appeal hearing with a view to reconvening so as to reconsider the appropriate sanction. Mrs McMillan brought proceedings in the High Court seeking to prevent her employer from reconsidering the appropriate sanction. She argued that the disciplinary procedure did not allow the appeal panel to increase the sanction. The High Court and the Court of Appeal agreed with her.
They held that the right of appeal under the disciplinary procedure was provided for the employee’s benefit and that it was not intended that the appeal should be a continuation of the disciplinary process, leaving all options open to the employer. In addition, if the Trust were able to upgrade a written warning to dismissal on appeal, the employee would have no appeal against the more serious sanction, which the Court of Appeal felt would be a surprising result.
As an aside, the Court of Appeal did say that it might be possible to provide for an increase in the level of disciplinary sanction on appeal, but only if it was an express provision of the disciplinary procedure. If an employer does provide for this, then presumably they would have to offer a further right of appeal if the disciplinary sanction was increased.
Dealing with disciplinary issues can be time consuming and difficult. However, following a fair procedure is key to being able to defeat any subsequent unfair dismissal claims. We advise on disciplinary issues on a daily basis, and we find that clients who spend a bit of time getting advice at an early stage can usually achieve a much more satisfactory outcome.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).