McMillan v Airedale NHS Foundation Trust: can employers increase disciplinary sanction on appeal?

McMillan v Airedale NHS Foundation Trust: can employers increase disciplinary sanction on appeal?

Ted Flanagan, Head of Employment Law at Gosschalks, discusses the McMillan v Airedale NHS Foundation Trust case and what it means for employers.

In this case, the employer (the Trust) took disciplinary action against their employee Miss McMillan, a Consultant.  She received a final written warning which she appealed under the Trust’s contractual disciplinary policy.

As a first stage her appeal failed. The Trust then told her it was going to move on to take steps to decide what the appropriate sanction would be. It became clear that this could involve an increased penalty which was potentially dismissal.

She then attempted to withdraw her appeal. She sought an injunction from the High Court to restrain the Trust from increasing her sanction to dismissal.

The High Court granted that injunction. The employment contract (which was to say the disciplinary policy incorporated into the contact) did not allow for an increased sanction on appeal. The Trust appealed to the Court of Appeal who dismissed their appeal.

The wording of the disciplinary procedure did not allow for the increasing of any sanction on appeal. Nor could it be implied from the wording.

The policy also referred to the ACAS Code of Practice. This specifically states that an appeal should not result in an increased sanction.

What this means for you

It is reasonably unusual for an employer to even contemplate increasing a sanction on appeal. Although there are occasions where the preliminary penalty seems to be lenient.

Any employer wishing to consider increasing the penalty would need to look at what their own policy says to see whether this was allowed.

Need advice? We can help you

Call Ted Flanagan today on 01482 324252 or email

You can find out more about our Employment Law services here.

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