McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031

Why care?

The Court of Appeal has upheld the High Court's decision that an employer could not increase the disciplinary sanction it imposed following an employee's appeal.

The case

The employer, an NHS Trust, had incorporated a formal and detailed disciplinary procedure into the employee's contract. Following a written warning, the employee (M) appealed. The Trust then contemplated increasing the severity of that sanction, which would have lead to the employee being dismissed. M argued in the High Court that the implication of a power to increase the disciplinary penalty would usurp her express right to appeal. The High Court accepted this argument and issued a permanent injunction restraining the Trust from reconsidering the sanction. The Trust appealed to the Court of Appeal which dismissed the appeal and held that the employer's contractual procedure did not allow for increased penalty on appeal by M. The contract itself was silent on this issue. The Court held that to imply such a power would be inconsistent with the right to appeal, which was intended as a benefit for the employee.

Furthermore, the procedure was explicit that there would be no further right of appeal. If the Trust were able to upgrade a written warning to dismissal on appeal, the employee would have no appeal against the more serious sanction, which would be a surprising result.

What to take away

This is a sensible result in these particular circumstances. The Court of Appeal also thought it relevant that the non-statutory Acas Guide ‘Discipline and grievance at work’ (which is separate from the statutory Code of Practice) expressly states that an appeal should not result in an increase in penalty. For an employer to reserve the right to do so, it would need to be expressly set out in the contract.