The case of McMillian v Airedale NHS Foundation Trust provides welcome clarification that, as many of us will have been aware of previously, that you should not increase a disciplinary sanction on appeal. In fact the ACAS Guide (as opposed to the actual Code) explicitly states that you should not increase a sanction at appeal.

In the case Miss McMillian was a Consultant Gynaecologist and at the first stage of the disciplinary she was found to have committed two acts of misconduct and was issued with a final written warning. She appealed on several ground, but at the appeal the allegations were again found out against her. The appeal was then adjourn with the intention of reconvening to consider the sanction imposed. The Trust by this stage felt that trust and confidence had broken down between Miss McMillan and themselves and wished to dismiss her. This was du to a fresh analysis of the misconduct and her behaviour through the process. However the disciplinary policy was silent as to whether a disciplinary sanction could be increased on appeal.

Miss McMillan objected and both tried to withdraw her appeal and prevent the appeal being reconvened by applying for a High Court injunction to stop the follow up meeting. The injunction was granted and then challenged by the NHS Trust. The Court of Appeal, at the follow up hearing, considered whether increasing a sanction at the appeal stage was appropriate. They concluded in Miss McMillian case that it was not appropriate.

The disciplinary process did not provide any contractual right to increase the sanction. If it did then they Trust may have been able to increase the sanction to dismissal. However to interpret the policies to allow an appeal to increase the disciplinary sanction, even if there was a full rehearing of the facts, was fundamentally incorrect. The appeal was there to benefit the employee as a review of the decision against them. Also if the increase in sanction was allowed then the employee would have no ability to challenge the sanction i.e. there was no further right of appeal under the NHS policy.

If there was further grave misconduct discovered at the appeal stage, then the Judges suggested that a new disciplinary hearing would need to be commenced. You could not just be added at appeal.

This case is a reminder for all managers to keep the disciplinary process clear, focussed and consider whether starting a new process is more appropriate than ‘throwing the kitchen sink in’ at appeal stage.

What would you have done in the case?