Can employers increase a disciplinary sanction on appeal?

By Jacqueline McCluskey

It is perhaps not an uncommon belief, among managers conducting disciplinary appeal hearings, that they are entitled to look at all matters afresh and reach their own conclusions. Indeed that is often instilled in them by HR teams, keen to emphasise that an appeal hearing is not a tick-box exercise but rather a thorough review of the facts and the procedures followed to date.

A recent decision handed down from the Court of Appeal (McMillan v Airedale NHS Trust) has, however, confirmed that in some cases the extent of the appeal manager’s authority does not include increasing the disciplinary sanction imposed. In other words, the appeal manager may not be able to increase the sanction from, for example, a final written warning to a dismissal.

The recent McMillan v Airedale NHS Trust case involved a doctor. The trust initiated disciplinary proceedings against her and issued her with a final written warning. She appealed against this sanction. The appeal panel upheld the complaints against her and proposed to reconvene to reconsider the appropriate sanction. However, Miss McMillan, then concerned that a worse sanction may be imposed (i.e. dismissal) brought proceedings seeking to prevent the trust from changing the sanction. She argued that the trust’s disciplinary procedure did not allow the appeal panel to increase the sanction…

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