Legal update: Can an employer increase the severity of a disciplinary sanction on appeal?

If an employer subjects an employee to disciplinary sanctions and that employee appeals, is an employer permitted to increase the severity of the sanction on appeal? This was addressed in the recent case of McMillan v Airedale NHS Foundation Trust. The employee was given a final written warning following a disciplinary process. She appealed, and the allegations were upheld. Before the Trust handed down the sanction, the employee withdrew her appeal. It was for the Courts to ascertain whether the Trust could increase the severity of the sanction to dismissal. There was no contractual term which allowed the Trust to do so.

The Courts found that the Trust could not for three reasons:

• The purpose of a right of appeal is to benefit the employee. If there is a possibility the sanction could be increased, there is a risk employees could be deterred from appealing.
• The Trust’s code stated there was no further right of appeal. This would mean that the employee would be left with no right to appeal the more serious sanction of dismissal.
• The ACAS guide regarding disciplinary procedures, while although not contractual, was referred to in the Trust’s code. The ACAS guide expressly stated that an appeal should not result in an increased sanction.

The Court stated that, if an employer wishes, it can expressly reserve the right under its disciplinary procedures to increase the sanction on appeal, and if there is such an express right then the employer may indeed increase the sanction, albeit that the employee should be offered a form of further appeal or review in the interests of natural justice. However in the absence of express provisions employers will be on risky ground, and will leave the decision open to challenge, if they increase the severity of a sanction on an employee’s appeal.

For further information, please contact a member of the employment law team.