A few days ago the Court of Appeal answered a question that most of us probably weren’t aware even needed a reasoned legal response: can an employer impose a more severe disciplinary penalty following an internal appeal? The short answer is no – unless the disciplinary procedure expressly provides for this.
The Court of Appeal has been called into action because the employer – a NHS Trust in Yorkshire – has a contractual disciplinary procedure. The employee is a hospital consultant who had appealed unsuccessfully against a final warning for misconduct. The appeal panel wanted to re-convene to consider whether she should be dismissed. Because the disciplinary procedure was incorporated into her contract of employment, she was able to put a legal block on any further disciplinary proceedings until the courts had decided whether the Trust was entitled to act in this way.
The high court judge decided that the appeal panel had no contractual power to increase the disciplinary sanction. The Court of Appeal has now backed this decision for a number of reasons. These boil down to one main point: employers have an appeal process for the protection of employees. From this perspective it makes little sense if appeals can make matters worse for the employee, particularly if the decision of the appeal panel is said to be final. Strangely the ACAS Code of Practice does not spell this out, but the accompanying guidance makes this point completely clear: “An appeal must never be used as an opportunity to punish the employee…”.
One would hope a dispute like this is unlikely to repeat itself, particularly now we have this guidance from the Court of Appeal. In any event it is rare to encounter disciplinary procedures that have contractual effect outside the public sector. Nonetheless it is as well to make it completely clear in an employer’s disciplinary procedure whether a penalty can be increased following an appeal. In most cases the answer will be no.