Bates Wells Braithwaite

UK 200 2013 position: 125

Court of Appeal rules employers are entitled to impose higher disciplinary sanction on appeal

In McMillan v Airedale NHS Foundation Trust, the Court of Appeal held that employers may, in principle, increase a disciplinary sanction on appeal provided the risk of imposing a higher penalty is made clear and the employee is afforded a further right of appeal against any increase.

Miss McMillan had initially been given a final written warning. She appealed and her employer was considering increasing her disciplinary sanction to dismissal. The Court of Appeal held that it was impermissible for her employer to impose a higher penalty because its own procedure had not made clear to Miss McMillan that she risked a higher penalty if she chose to appeal, and also specifically stated she would not be allowed any further right of appeal.

The court held that would contravene both the ACAS Code of Conduct (particularly paragraphs 25–28) as well as the employer’s own code, which, the court held, provided an appeal mechanism for the benefit of employees, not the employer. However the court’s judgment is quite explicit that, in principle, an employer may increase a disciplinary penalty if it has an appropriately worded disciplinary procedure…

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