Increasing disciplinary sanctions and appeals

29th July 2014 A recent decision of the Court of Appeal highlights the limitations that employers may find in dealing with an appeal.

The case of McMillan v Airedale NHS Foundation Trust concerned a consultant obstetrician. The Trust took disciplinary action against her based on an allegation that she had given inconsistent accounts of what had happened in an incident  where a patient had encountered complications in the course of a birth by ceasarean section. The consultant received a final written warning after two complaints of misconduct were upheld against her. She submitted an appeal against the final written warning. The employer responded to the receipt of the appeal by stating that it would deal with the appeal by way of a rehearing and would consider the evidence and be entitled to come to its own decision "in terms of the sanction applied"- they indicated that this meant that they could uphold the original decision, impose a lesser penalty, or impose a more serious penalty (which clearly as the original penalty was a final written warning could only mean dismissal). The appeal went ahead, at the end of which the panel reserved its decision on sanction, having confirmed that it found there had been misconduct. Just before the day of the decision on the sanction the Trust wrote to the consultant's solicitor enclosing a copy of the submisions made on behalf of the Trust. In that document the Trust's representative contended that the behaviour of the consultatn had resulted in the loss of trust and confidence in her by her colleagues, and that the relationship between them had irrevocably broken down. In effect it therefore called for her dismissal. The consultant then sought to withdraw her appeal (on the basis that without her appeal being "live" the appeal panel could not go ahead and dismiss her in line with the proposals of the Trust's representative. She also sought an injunction through the court to prevent the Trust from reconsidering the disciplinary sanction. She argued in her claim to the court that the Trust did not have the power to increase the disciplinary sanction at an appeal. She argued that the procedure allowed for an employee to "appeal against a written warning or dismissal", and that the procedures then did not allow any further appeal against the decision of the appeal panel. She maintained that by the Trust claiming to have the right to impose a greater penalty and to proceed whether she wished to or not the Trust was usurping her right as an employee to appeal.

The High Court granted the injunction against the Hospital Trust. They in turn appealed against that decision to the Court of Appeal. 

The Court of Appeal rejected the Trust's appeal. In the judgment the Court of Appeal noted that the Trust's procedures did not expressly provide for an increase in disciplinary penalty to dismissal at an appeal. The Trust said that the court could imply this right, but that argument was rejected. The Trust referred to such a right in a different policy and argued that it could be inferred across from that policy to the disciplinary policy. This argument was also rejected. The court noted that if the Trust were able to upgrade a warning to dismissal on an appeal, the employee would be left with no subsequent appeal against a more serious penalty, which the court regarded as a rather surprising result. The court also referred to the ACAS Guide "Discipline and grievance at work" (which is separate from the ACAS Code of Practice), which expressly stated that an appeal should not result in an increase in penalty.

Although he agreed with the final outcome, Lord Justice Underhill, in giving his decision pointed out that there would be circumstances when an employer may be justified in increasing the severity of sanction at an appeal. Examples of this would be where in an appeal it was clear that say a health and safety breach was not just careless but deliberate, or where new evidence comes out in the appeal which shows that the misconduct was much more serious than was previously thought. However, he said that in order to do this the employer must expressly reserve the right in its disciplinary procedures.  

The consequence of this decision is that if an employer may wish to be able to increase a penalty on appeal it must explicitly reserve the right to do so within its disciplinary policy. The employer cannot assume that it has such a right in the absence of it being clearly stated. Furthermore we believe that if the appropriate sanction at an appeal is dismissal that must be distinctly stated to be available to the employer within its disciplinary procedures.

If you need advice on the matters raised in this article, or want us to review your disciplinary procedures in light of this decision, please do not hesitate to contact us at Hallett Employment Law Services Ltd.