Can A Disciplinary Sanction Be Increased At Appeal?

In the case of McMillan v Airedale NHS Foundation Trust, the Court had to consider whether an employer is entitled to increase a disciplinary sanction if their employee had chosen to appeal.

Background

Miss McMillan, (the Claimant) was employed as a consultant obstetrician and gynecologist at Airedale NHS Foundation Trust (The Trust).

An allegation of misconduct led to disciplinary proceedings and Miss McMillan was issued with a final written warning. The misconduct allegation related to inconsistent accounts about exactly what had occurred at an adverse event in June 2010.

This sanction was appealed, and the Appeal Panel upheld the original findings of misconduct. Following this finding, the Appeal Panel took steps to reconvene in order to consider the appropriate sanction.

In the interim Miss McMillan purported to withdraw her appeal. She also commenced legal proceedings for an injunction, in order to prevent the Trust from reconvening (and considering the sanction.)

The Court had to decide upon two key issues:

1. Whether, on Miss McMillan’s appeal against sanction, the Panel is permitted under her contract of employment to impose a sanction more severe than the final written warning imposed by the first instance panel, and in particular whether it could terminate her employment with the Trust.

2. The second issue is whether Miss McMillan’s having at least purported to withdraw her appeal, could allow the Appeal Panel to proceed with considering a sanction consistent with her contract of employment. http://www.bailii.org/ew/cases/EWCA/Civ/2014/1031.html.

Decision

In the High Court, the decision was found against the Trust on both issues and therefore the Respondent appealed.

At the Court of Appeal, a key point of consideration was whether Miss McMillan’s contract of employment permitted the Appeal Panel to increase the original disciplinary sanction; and whether or not this could include terminating her employment.

The Court held that Miss McMillan’s contract of employment did not permit the Appeal Panel to increase the disciplinary sanction. They also held that it was relevant for the ACAS code to be expressly referred to as part of the Trust’s code of conduct.

This was relevant because the ACAS Guide to Disciplinary Procedures states that a sanction cannot be increased on appeal. They also took into consideration that should the sanction have been increased there would have been no further opportunity to appeal against this.

Finally, they agreed that should an increased sanction be imposed at appeal; this could be tantamount to a breach of contract.