Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

NHSDisciplineDiscipline and grievancesDismissalUnfair dismissal

NHS trust had no contractual right to increase disciplinary sanction on appeal

by Mary Clarke 23 Sep 2014
by Mary Clarke 23 Sep 2014 Court of Appeal. Photo: Lucian Milasan/Shutterstock
Court of Appeal. Photo: Lucian Milasan/Shutterstock

In DLA Piper’s latest case report, the Court of Appeal held that an employer does not have the right to increase a disciplinary sanction on appeal unless it expressly provides for this option in its disciplinary procedure.

Disciplinary procedures in the NHS: the case law

Supreme Court restores injunction to prevent NHS trust from continuing flawed disciplinary procedure

Unfair dismissal: Tribunal entitled to find dismissal for lewd comment unfair

Human rights: Article 6 fair hearing protections did not apply to contractual disciplinary procedures

McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031 CA

Introduction

The Court of Appeal held that, on the facts of the case, Airedale NHS Foundation Trust could not increase the severity of a disciplinary penalty following an appeal by its employee, Ms McMillan. Ms McMillan appealed against a final written warning administered by the trust. At the appeal hearing, the panel convened by the trust contemplated increasing the disciplinary sanction to dismissal because it viewed the disciplinary charges so seriously.

This increase was not permitted under the terms of the disciplinary procedure that applied to Ms McMillan. The Court, however, confirmed that an employer could, in principle, include a contractual right in a disciplinary process to increase disciplinary penalties on appeal.

Facts

Ms McMillan was employed as a midwife by Airedale NHS Foundation Trust and the disciplinary procedure that applied to her was incorporated into her contract of employment. It included details about the process to be followed and provided for one right of appeal against a warning or dismissal, with no further right of appeal.

Following a disciplinary investigation, the trust imposed a final written warning on Ms McMillan. She appealed against the decision. The trust advised Ms McMillan that the internal appeal panel would rehear the matter and this would include a review of the outcome “in terms of the sanctions applied”. The trust’s view was that the appeal panel had full control over the decision, including upholding, reversing, reducing or increasing the sanction.

The appeal hearing took place. Ms McMillan’s lawyers believed the hearing was deficient, but the trust denied their request for a full rehearing. The panel informed Ms McMillan that it was deciding on the sanctions previously imposed. The appeal panel advised Ms McMillan of its decision that she had breached the trust placed in her and that her employment was untenable. Ms McMillan withdrew her appeal to avoid the trust increasing the penalty against her to dismissal and applied to the High Court for an injunction to restrain the trust from doing so.

High Court decision

The High Court held that Ms McMillan’s contract with the NHS did not enable her employer to impose more severe sanctions. The contract did not clearly provide such a power, and to do so contradicted the Acas code of practice on disciplinary and grievance procedures, which was referenced in the trust’s disciplinary processes. Seeing as the appeal was the sole and final right of appeal, if the sanction was increased, Ms McMillan would have no appeal against her dismissal, which would be a breach of the Acas code. The trust appealed.

Court of Appeal decision

The Court of Appeal dismissed the trust’s appeal. It found the right to appeal granted by the trust against a warning or dismissal existed to benefit the employee, not to allow the employer to continue the disciplinary process and make it more severe. The Acas code included within the trust’s process clearly stated that an appeal must not result in an increased sanction.

The trust argued that in a rehearing a more serious charge might be made out and it would then be compelled to start a new disciplinary procedure if it was not entitled to increase the original penalty.

The Court of Appeal observed that, where a contractual disciplinary process is breached, employees may have the possibility of getting an injunction, but otherwise there is potentially no remedy, given that the test for unfair dismissal is on substantive and procedural fairness, rather than a strict contract test.

Implications for employers

The lesson for employers is that they may reserve a right to increase a disciplinary penalty on appeal if this is done expressly and transparently. However, if such a right is included, it would be strongly advisable (and in accordance with the Acas code) to permit a second right of appeal, rather than confining an employee to a single right of appeal.

A key principle of the Acas code is that employers should allow an employee to appeal against any formal decision made. Employers should also be reminded that disciplinary procedures may be incorporated into the employee’s contract and must be followed.

Avatar
Mary Clarke

Mary Clarke is a partner at DLA Piper.

previous post
Recruitment trends 2014: Take part in the XpertHR survey
next post
Managers trust their employers the least in the public sector, finds survey

You may also like

‘Pushy’ lawyer awarded £152k for sex discrimination

8 Aug 2022

Top 10 HR questions July 2022: heatwaves and...

1 Aug 2022

Met loses appeal against reinstating senior officer

27 Jul 2022

NHS workforce faces ‘greatest crisis in history’

25 Jul 2022

Health leader repays Covid bonus because of staff...

22 Jul 2022

Public sector pay: Unions angry at below-inflation rises

20 Jul 2022

MoD reveals zero-tolerance approach to sexual misconduct

20 Jul 2022

When is a resignation not a resignation?

15 Jul 2022

Whistleblower awarded £12k in Subway unfair dismissal case

13 Jul 2022

Whistleblowers’ charity condemns Court of Appeal judgment

13 Jul 2022
  • 6 reasons why work-based learning is better than traditional training PROMOTED | A recent Fortune/Deloitte survey found that 71% of CEOs are anticipating that this year’s biggest business disrupter...Read more
  • Strengthening Scotland’s public services through virtual recruiting PROMOTED | This website is Scotland's go-to place for job seekers looking to apply for roles in public services...Read more
  • What’s next for L&D? Enter Alchemist… PROMOTED | It’s time to turn off the tedious and get ready for interactive and immersive learning experiences...Read more
  • Simple mistakes are blighting the onboarding experience PROMOTED | The onboarding of new hires is a company’s best chance...Read more
  • Preventing Burnout: How can HR help key workers get the right help? PROMOTED | Workplace wellbeing may seem a distant memory...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2022

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2022 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+