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The implications of McMillan v Airedale NHS

The Court of Appeal has upheld the High Court’s decision that a contractual disciplinary procedure did not allow an employer to increase a disciplinary sanction on appeal. In the absence of an express contractual right to increase the sanction on appeal, no such power will be implied into the contract.

The Court of Appeal has upheld the High Court's decision that a contractual disciplinary procedure did not allow an employer to increase a disciplinary sanction on appeal. In the absence of an express contractual right to increase the sanction on appeal, no such power will be implied into the contract. 

Howes Percival Employment Law Associate Nicola Butterworth comments “Most employers are unlikely to have an express power to increase the original disciplinary sanction, so it is important for employers to ensure that they undertake a thorough disciplinary investigation and conduct an effective disciplinary hearing prior to issuing the disciplinary sanction, as they cannot change their mind at a later date, on appeal by the employee (even if fresh evidence comes to light during the appeal regarding the employee's conduct) and impose an increased disciplinary sanction.”

The Court of Appeal has confirmed that employers do not have free rein to increase the disciplinary sanction imposed on an employee after the original disciplinary hearing, in circumstances in which the employee appeals against the original decision. This is so, even where new evidence emerges at the appeal hearing which results in more serious findings of misconduct. If an employer wishes to have the right under its disciplinary procedures to increase the sanction on appeal it must be expressly provided for. 

In the case of McMillan v Airedale NHS Foundation Trust, the Trust's disciplinary panel upheld two complaints of misconduct against Miss McMillan, who was employed as a consultant obstetrician and gynaecologist. She was issued with a final written warning. Miss McMillan appealed against the disciplinary sanction and the Trust's appeal panel having affirmed the findings of misconduct, proceeded to take steps to reconvene to consider the appropriate sanction. Before the appeal panel could decide upon the sanction, Miss McMillan withdrew her appeal and commenced procedures for an injunction to prevent the Trust from reconvening the hearing to consider the issue of sanction. 

The High Court considered whether the Trust's appeal panel was permitted under Miss McMillan's contract of employment to impose a sanction which was more severe than the final written warning. The High Court granted a permanent injunction restraining the Trust from reconvening an appeal hearing to consider the issue of sanction and seeking to terminate Miss McMillan's contract of employment. The Trust appealed the judgment, submitting that there was nothing in Miss McMillan's contract of employment which precluded an appeal panel from exercising its discretion to increase the sanction imposed in the first instance.  

The Court of Appeal dismissed the appeal. It concluded that Miss McMillan's contract of employment provided her with a right to appeal which could not result in an increase in sanction. Disciplinary procedures are intended to give the employee protection against capricious action by the employer. The right of an employee to appeal against a disciplinary sanction is conferred for their own benefit, so that its exercise will not leave them worse off. A view reinforced by the terms of the ‘Discipline and grievances at work: the Acas Guide' which states that “An appeal must never be used as an opportunity to punish the employee for appealing the decision, and it should not result in any increase in penalty as this may deter individuals from appealing.” 

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