An employee’s right to appeal internally against a disciplinary warning is a long standing right that employers are well used to dealing with. Sometimes, a warning will be downgraded or removed from an employee’s record on appeal by a manager looking at the case with fresh eyes.
However, what happens when an appeal officer wants to escalate the original disciplinary sanction?
Escalating An Employee Disciplinary Sanction
McMillen v Airedale NHS Foundation Trust EWCA Civ 2014
In the above case, the Court of Appeal had to consider the issue of an appeal officer wanting to escalate an original disciplinary sanction. Miss McMillen was a consultant working for the Trust, who was issued with a final written warning for misconduct in 2011. Miss McMillen appealed against the final written warning. Not only did the Trust uphold the warning, it also sought to reconvene to reconsider the sanction, with the possibility of upgrading it to dismissal.
Miss McMillen brought proceedings in the High Court for an injunction to prevent the Trust from reconsidering her disciplinary sanction. The Trust’s disciplinary procedure did not contain any right on the Trust’s part to increase disciplinary sanctions and Miss McMillen argued that having such a power would cancel out her right to appeal. The Court agreed with Miss McMillen and the injunction was granted to prevent the Trust from reconsidering the sanction.
The Trust appealed to the Court of Appeal, who upheld the High Court decision. The fact that the Trust did not have the contractual right in its disciplinary procedure to var /escalate sanctions was a big factor in the Court’s decision. If the Trust were able to upgrade a final written warning to dismissal, Miss McMillen would have no right of appeal left against the more serious outcome, which goes against the natural principles of fairness.
Further, the Court held it would be contrary to the principle contained in the ACAS Code of Practice, which employers are encouraged to follow and which expressly states that an appeal should not result in an increase in penalty.
Comment
Employers should bear this decision in mind and only consider whether a review, and possible escalation in sanction, is appropriate where the option is expressly included within the disciplinary procedure.
Even if it is, they should still bear in mind the principles set out in the ACAS Code and weigh up whether taking such a draconian step is appropriate and fair in the circumstances.
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