Employers should take care when considering increasing disciplinary penalties on appeal and ensure they have an express right to do so.
The Court of Appeal in McMIllan v Airedale NHS Foundation Trust ruled that where there is a contractual disciplinary policy the employer has no right to increase a disciplinary sanction on appeal unless the policy expressly states they may do so. This is in line with the ACAS guide on disciplinary procedures which states that an appeal should not result in an increased sanction on the employee.
The Court of Appeal in the above case determined that a right of appeal is a benefit to an employee and where there is no second stage of appeal it cannot be implied that the employer has the right, on appeal by the employee, to actually increase rather than lessen the disciplinary sanction. In the absence of a second stage of appeal the employee would be left with a more severe sanction and no form of recompense.
If an employer, on appeal, increased a disciplinary sanction to dismissal and no second stage of appeal was available, they could find themselves faced with an unfair dismissal claim.
It is likely this ruling will apply similarly to employees with non-contractual disciplinary policies and they should take care to ensure any appeal is conducted as a re-hearing of the matter and ideally a second stage of appeal should be allowed for to consider any sanction imposed.
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