Labour & European Law Review Weekly Issue 385 03 September 2014
The Acas guide on disciplinaries and grievances at work states that an appeal should not result in an increased penalty. In McMillan v Airedale NHS Foundation Trust, the Court of Appeal has gone further and held that as the right of appeal exists for the benefit of employees, it would be “surprising” if employers could elevate a warning to dismissal on appeal as that would undermine the whole purpose.
Ms McMillan, a consultant obstetrician and gynaecologist, was given a final written warning in November 2011. She appealed against the sanction to an appeal panel in March 2012, but it upheld the findings of misconduct. As she was concerned that she might be dismissed at the sanctions hearing, Ms McMillan asked for a re-hearing by a fresh panel. When that request was refused, she announced that she had withdrawn her appeal, which she believed meant that the panel no longer had authority to consider the question of sanction.
However, when the panel decided to reconvene in August to decide on a sanction, Ms McMillan applied for an injunction to stop the hearing from going ahead on the basis that the panel did not have the power to impose a more severe sanction than the first written warning. In any event, as she had withdrawn her appeal, the panel could not proceed to decide on a sanction.
High Court decision
At the full hearing the High Court agreed with Ms McMillan. It found that there was no express or implied power in the Trust’s procedures to increase sanction on appeal. It held that to decide otherwise would be contrary to the authoritative guidance given in the Acas guide and would mean that the employee had no right of appeal against the increased sanction. In effect, it would give the Trust a right of appeal not recognised in the procedures themselves.
As for Ms McMillan’s purported withdrawal of her appeal, the judge decided that, as the appeal procedure exists to protect the employee, there was no justification for restricting her right to withdraw her appeal at any point.
The judge therefore granted a permanent injunction restraining the Trust from reconvening an appeal panel to consider the issue of sanction (or anything else for that matter) under the appeal in question.
Court of Appeal decision
The Court of Appeal dismissed the Trust’s appeal for two main reasons. In the first place, the Trust’s disciplinary procedure granted employees the right of appeal against a written warning or dismissal. Given that this right existed for the benefit of the employee to demonstrate to their employer that they should not have been issued with a warning or should not have been dismissed (whichever was appropriate), its underlying purpose could not include the option of elevating a warning to a dismissal.
In addition, paragraph 4.26 of the Trust’s procedure made clear that, once exercised, there was no further right of appeal. This would mean that an employee who was given a written warning at first instance could be dismissed on appeal, and would not have the right of appeal against this most serious sanction. That, as the Court pointed out, “would be a surprising result: the employee is given a right of appeal against the modest sanction of a written warning, but none at all against the decision of his employer to relieve him of his employment altogether. Given that disciplinary procedures of this nature are intended to give the employee protection against capricious action by the employer, it would be fair to say that their purpose would not have been fully achieved”.
The Court also pointed to the non-statutory Acas Guide “Discipline and grievances at work” which expressly states that an appeal should not result in an increase in penalty because that might put individuals off from appealing.
This decision is a helpful reminder that the appeal process is there to protect the employee not the employer. Even if a contract includes a clear express term providing that sanction could be increased on appeal it may well still fall foul of the reasonableness requirements of section 98 of the Employment Rights Act in an unfair dismissal claim, particularly when the Acas guide specifically states that an appeal should not be used as an opportunity to punish the employee and should not result in any increase in penalty as this might deter individuals from appealing.