Case update (3): Unfair dismissal: sanction on the up…

Summary: If an employee is subject to disciplinary proceedings, is an employer entitled to increase any disciplinary sanction imposed if the employee exercises a right to appeal?

No, says the Court of Appeal in McMillan v Airedale NHS Foundation Trust available here.

Facts: Miss McMillan was employed by Airedale NHS Foundation Trust (the Trust) as a consultant obstetrician and gynaecologist. Following an adverse incident in June 2010, the Trust initiated disciplinary proceedings against Miss McMillan. She received a final written warning following a finding of misconduct. She appealed the disciplinary decision. The Trust’s disciplinary procedure was contractual. It included reference to the ACAS Code of Practice on Disciplinary and Grievance Procedures.

The appeal panel upheld the findings of misconduct andreconvened the appeal hearing to consider the appropriate sanction. Miss McMillan firstly purported to withdraw her appeal and then commenced legal proceedings for an injunction to prevent the employer from reconvening the hearing to consider the sanction.

Miss McMillan applied to the High Court for an injunction to restrain the Trust from potentially increasing her sanction to a dismissal. The High Court held that the employment contract did not allow the appeal panel to impose a more severe sanction than given by the original panel. The Trust appealed.

The Court of Appeal unanimously dismissed the appeal.  The key issue in the Court of Appeal was whether the appeal panel was permitted under Miss McMillan’s employment contract to impose a sanction which was more severe than the final written warning imposed by the first panel, and in particular whether it could terminate her employment. Miss McMillan’s contract of employment provided her with the right to an appeal that could not result in an increased sanction and an increased sanction would amount to a breach of contract.

The Trust’s code granted employees the right of appeal against a warning or dismissal. That was the extent of an appeal. The appeal was there to benefit the employee, not the employer.

The Court of Appeal held that the statement in the ACAS Guide to Disciplinary Procedures that a sanction cannot be increased on appeal was relevant. Although it was not statutory guidance, nor was it incorporated into the contract, the ACAS Code was expressly referred to in the Trust’s code and the ACAS guide was reasonably available to all parties. Another factor influencing the Court’s decision was the fact that there was no further right of appeal. Accordingly, if the sanction was increased from a written warning to a dismissal at the appeal hearing Miss McMillan could not, in any way, appeal this more serious sanction. Miss McMillan would therefore be deprived of protection against capricious action by the employer.

Implications: This case confirms that where an employer has set out a formal contractual disciplinary procedure, it is bound by the terms of that procedure. Employers should be wary of seeking to increase disciplinary sanctions at the appeal stage unless their contractual disciplinary and appeals procedures expressly and explicitly confer the right to do so.

If an employer does want to have the right to increase the sanction at appeal then it will need to review its current disciplinary procedures and consider whether and how they may be varied to include an express power to increase a sanction on appeal. However, employers should bear in mind that employees may complain that this ignores ACAS guidance. Further, if employers do make such amendments it would be prudent to also include a right to appeal against such an increased sanction (but dealing only with the sanction alone).

If you do decide to vary your procedures (whether contractual or not) then please do let us know if we can help by contacting Luke Menzies at luke@menzieslaw.co.uk or another member of the team.