Can Employers Increase a Disciplinary Sanction on Appeal?
24th July 2014
It is perhaps not an uncommon belief, amongst managers conducting disciplinary appeal hearings, that they are entitled to look at all matters afresh and reach their own conclusions. Indeed that is often instilled into them by HR teams, keen to emphasize that an appeal hearing is not a tick box exercise but rather a thorough review of the facts and the procedures followed to date.
A recent decision handed down from the Court of Appeal (McMillan v Airedale NHS Trust) has however confirmed that in some cases the extent of the appeal manager’s authority does not include increasing the disciplinary sanction imposed. In other words, the appeal manager may not be able to increase the sanction from, for example, a final written warning to a dismissal.
The recent McMillan v Airedale NHS Trust case involved a doctor. The Trust initiated disciplinary proceedings against her and issued her with a final written warning. She appealed against this sanction. The appeal panel upheld the complaints against her and proposed to reconvene to reconsider the appropriate sanction. However Miss McMillan, then concerned that a worse sanction may be imposed (ie: dismissal) brought proceedings seeking to prevent the Trust from changing the sanction. She argued that the Trust’s disciplinary procedure did not allow the appeal panel to increase the sanction.
The Trust’s disciplinary procedure provided that an employee ‘can appeal against a written warning or dismissal’, it set out the appropriate procedure and stated that ‘there will be no further right of appeal’, but it did not spell out the Trust’s powers in relation to the sanction on appeal.
The Court of Appeal, in reaching its decision that the sanction could not be increased, took into account the ACAS Guide “Discipline and Grievance at Work”. The Guide, although not legally binding, states that appealing the decision should not result in any increase in penalty as this may deter individuals from appealing in the first place.
The Court of Appeal however also went on to say that this did not mean that an employer could never increase the sanction imposed on appeal. But, in order to be able to increase the sanction on appeal, an employer must expressly provide a right to do so in the disciplinary policy.
It is likely that the disciplinary policies of most employers will not provide a specific right to increase the sanction on appeal. Employers would therefore be well advised to consider reviewing their policy as otherwise they may face breach of contract claims and/or unfair dismissal claims arising out of procedures followed at the appeal stage.
Whilst employers minds over the Summer may be focussed on the thorny issues arising from the challenge to calculating holiday pay (with cases due to be heard by the EAT on 30th and 31st July), they should ensue that other housekeeping matters such as the operation of their disciplinary procedures are also keeping apace with current law.
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