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Increasing penalties during disciplinary appeals: “Oh no you don’t!” says the Court of Appeal

The case of McMillan v Airedale NHS Trust is an interesting one for employers to bear in mind, particularly at this time of year when many are dusting off policies, procedures and contracts and reviewing them in the (relative) peace of August.

In essence: Ms McMillan is a consultant obstetrician and gynaecologist.  She was subject to disciplinary proceedings under the Trust’s contractual disciplinary procedure for giving inconsistent accounts of events during an adverse incident with a patient in 2010.  There was a finding of misconduct (on two counts) and Ms McMillan was given a final written warning.  She appealed and the internal appeal panel upheld the complaints.  However, before the panel could reconvene to consider the appropriate sanction, Ms McMillan tried to withdraw her appeal and brought proceedings in the High Court for an injunction to prevent the Trust from reconvening the panel to decide on a sanction.

The High Court granted a permanent injunction against the Trust reconsidering the sanction and the Trust appealed.  The Court of Appeal dismissed the appeal, holding that the fact that there was no contractual provision detailing the Trust’s powers in relation to the appeal did not mean it had free rein in this respect.  The appeal process was there for the benefit of the employee and it was not intended to be a continuation of the first-stage disciplinary process (during which all options were open).  The Court of Appeal noted that: (i) the ACAS Guide on Discipline and Grievances At Work expressly states that penalties should not be increased on appeal; but that (ii) there is nothing wrong with employers seeking to keep this possibility open, but it must be provided for in the contract/procedure. 

Pause for thought indeed!

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