McMillan -v- Airedale NHS Foundation Trust  EWCA Civ 1031
Mrs McMillan was employed by Airedale NHS Foundation Trust (the Trust) as a consultant obstetrician and gynaecologist. Following an adverse incident in June 2010, the Trust initiated disciplinary proceedings against Mrs McMillan based on an allegation that she had given inconsistent accounts about what had occurred.
The Trust’s disciplinary procedure was contractual. It included by reference the ACAS Code of Practice on Disciplinary and Grievance Procedures and Maintaining High Professional Standards in the Modern NHS (MHPS). Following a disciplinary hearing, two complaints of misconduct were upheld against Mrs McMillan. She was issued with a final written warning in November 2011.
Mrs McMillan appealed the Trust’s decision. Her grounds of appeal included a challenge to the disciplinary panel’s findings and reasoning. Given the range of Mrs McMillan’s criticisms of the disciplinary panel’s findings, the appeal hearing was convened as a full re-hearing of the evidence, which inevitably would lead to the appeal panel forming its own conclusions about the conduct charges.
At the hearing, the appeal panel upheld the charges against Mrs McMillan. In most cases, this would have been the end of the matter in terms of internal processes. However, in this case, the appeal panel decided to reconvene to review the decision to award Mrs McMillan a final written warning.
Prior to the reconvened appeal hearing, it became clear that the Trust was calling for Mrs McMillan’s dismissal. She therefore withdrew her appeal and asserted that the panel had no further jurisdiction to consider sanction.
The Trust refused to allow Mrs McMillan to withdraw her appeal and she sought a court injunction to prevent the Trust from reconvening the hearing and/or to restrain the Trust from increasing the sanction.
The claimant’s contract and the court’s decision
The court upheld Mrs McMillan’s complaint and considered that the Trust could not increase the sanction on appeal.
Of crucial importance was that the disciplinary procedure (MHPS) was incorporated into Mrs McMillan’s contract. It set out that an employee could appeal against written warning or dismissal and indicated that there would be no further right of appeal.
It was also noted that:
- appeal provisions in general are for the employee’s benefit and, accordingly, the appeal should not be a continuation of the disciplinary process leaving all options open to the panel;
- as the procedure was explicit that there was to be no further right of appeal, had the Trust dismissed Mrs McMillan on appeal, she would have had no right of appeal against the dismissal; and
- the provisions of the ACAS Guide ‘Discipline and grievance at work’ were significant to the issues. While the Guide is separate from the statutory Code of Practice, it serves to provide guidance about the Code. The ACAS guide states that an ‘appeal must never be used as an opportunity to punish an employee for appealing a decision and it should not result in any increase in penalty that may deter individuals from appealing’.
For these reasons, it was held that the imposition of an increased sanction on appeal would amount to a breach of Mrs McMillan’s contract of employment.
Proper provision needed to increase a sanction
It was recognised that, in principle, an employer may increase a disciplinary sanction on appeal. However, in order to do so, it must be explicitly set out in the disciplinary policy and the employee must be afforded a further right of appeal.
In McMillan, that was simply not the case, as the Trust’s own procedure did not make clear to Mrs McMillan that she risked a higher penalty if she chose to appeal and the procedure specifically stated that the claimant would not be allowed any further right of appeal.
Currently, any such a reservation would sit at odds with the spirit of MHPS (in relation to clinical staff) and therefore should be approached with caution.