Employer's Beware: Court Of Appeal Condemns Increased Sanctions On Appeal


07 August, 2014

The Court of Appeal has determined that appeals against the outcome of disciplinary proceedings cannot normally result in an increased sanction against the (former) employee.

In the case of McMillan v Airedale NHS Foundation Trust, the Court of Appeal considered Miss McMillan's appeal against two issues. Firstly, she contested the decision of the appeal panel to increase her sanction from a written warning to dismissal. Secondly, she claimed that having withdrawn an appeal, the Employer should not continue with the appeal process in any event. The Trust appealed the initial finding in favour of these arguments before the Queen's Bench Division.

The preliminary issue for the Court of Appeal was therefore whether the appeal panel acted lawfully in elevating Miss McMillan's sanction to dismissal. In dismissing the Trust's appeal, the Court of Appeal stated that elevation of a sanction cannot be available to an appeal panel as there is no further right of appeal available after this point. The Court said that to allow increased sanctions "would be a surprising result," as the right to appeal is intended to benefit the employee, not the employer. It would be particularly unjust for a dismissal to be imposed in favour of a warning, in circumstances where the employee would be afforded no further opportunity of appeal.

Finally, concerning Miss McMillan's withdrawal of the application to appeal, the Court found it unnecessary to decide on the point because is it is preferable to wait for "a case where the point arose directly". The Court of Appeal therefore left this issue open to future interpretation in more closely related circumstances. We therefore await further guidance on this point.

This case once again serves as a reminder to Employers of the need for defined disciplinary policies, for the benefit of Employers and Employees alike.

For a complimentary review of your polices and procedures, please contact the Forbes Employment Team on 01772 220022 or email Jonathan Holden


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