Elizabeth McMillan was employed as a consultant obstetrician and gynaecologist by the NHS Foundation Trust. She was subject to disciplinary proceedings following an incident involving a patient who encountered complications whilst giving birth. It was alleged that Ms McMillan gave inconsistent accounts of what occurred during the incident. Following disciplinary proceedings, the Trust upheld two complaints of misconduct against Ms McMillan and issued her with a final written warning.

Ms McMillan, through her solicitors, appealed against this sanction. She was informed by the Trust that her appeal would be addressed by way of a re-hearing. The appeal panel would have available to it all the options that were available during the initial disciplinary proceedings. It could uphold the original decision and/or reduce or increase the sanction, or it could clear Ms McMillan of misconduct and remove the sanction from her record. Ms McMillan’s solicitors communicated her agreement with this approach to the Trust.

The appeal panel affirmed the findings of misconduct but before the panel could consider the appropriate sanction, Ms McMillan withdrew her appeal and commenced proceedings in the High Court to prevent the appeal panel from increasing the disciplinary sanction on appeal.

The Trust’s written disciplinary procedures were silent on whether a sanction could be increased on appeal. The Trust argued that even if this silence prevented the appeal panel from increasing the sanction on appeal, it could, as it did in this case, agree appropriate procedures in advance with Ms McMillan which could include increasing the sanction.

The High Court found against the Trust and granted a permanent injunction restraining the Trust from reconvening an appeal panel to consider the issue of sanction or any further matters. The Trust appealed this decision.

The Court of Appeal held that the silence in the disciplinary procedures prevented the Trust from increasing on appeal the sanction imposed. The Trust could not seek to agree with employees appeal procedures which provided for the increase of a sanction.

In light of this decision, employers who wish to have the power to increase a disciplinary sanction on appeal should have comprehensive disciplinary procedures in place which expressly include the power to do so. Generally, the power to increase a sanction on appeal should be exercised cautiously and relied upon only in exceptional cases. The appeal should be a rehearing and not just a review of the original decision. Ideally, it should provide for a further right of appeal in relation to the sanction only.