DISCIPLINARY appeal hearings are necessarily complex events to manage and it makes sense that managers conducting them are entitled to look at all matters afresh and reach their own conclusions on the matters at hand.
This is widely considered best practice and its function is to emphasise that an appeal hearing is not a tick box exercise, but a thorough review of the facts and the procedures followed to date.
However, a recent ruling by the Court of Appeal has found that in some cases managers will be forced to uphold an initial disciplinary sanction, even if a review of the facts seems to warrant increasing it, unless it has provided for the right to increase disciplinary sanctions on appeal in its disciplinary procedures policy.
The recent decision handed down from the Court of Appeal (McMillan v Airedale NHS Trust) confirmed that in some cases the extent of the appeal manager’s authority does not include increasing the disciplinary sanction imposed. In other words,the appeal manager may not be able to increase the sanction from, for example, a final written warning to a dismissal, unless this option is expressly granted in its official – and published – procedures.
Airedale NHS Trust initiated disciplinary proceedings against a consultant obstetrician and gynaecologist, Miss McMillan, who was suspected of misconduct relating to her involvement in a serious patient incident which necessitated emergency surgery. A disciplinary panel agreed with this and issued her with a final written warning. She appealed. The panel upheld the complaints and proposed to reconvene to reconsider the appropriate sanction.
However Miss McMillan, then concerned that a worse sanction may be imposed (ie dismissal) brought proceedings seeking to prevent the Trust from changing the sanction. She argued that the Trust’s disciplinary procedure did not allow the appeal panel to increase the sanction.
The Trust’s disciplinary procedure provided that an employee “can appeal against a written warning or dismissal”, it set out the appropriate procedure and stated that “there will be no further right of appeal”, but it did not spell out the Trust’s powers in relation to the sanction on appeal.
The Court of Appeal, in reaching its decision that the sanction could not be increased, took into account the ACAS Guide “Discipline and Grievance at Work”. The Guide, although not legally binding, states that appealing the decision should not result in any increase in penalty as this may deter individuals from appealing in the first place.
The Court of Appeal however also went on to say that this did not mean that an employer could never increase the sanction imposed on appeal. But, in order to be able to increase the sanction on appeal, an employer must expressly provide a right to do so in its disciplinary policy.
It is likely that the disciplinary policies of most employers will not provide a specific right to increase the sanction on appeal. Best practice advice to employers therefore is to consider reviewing their policy, as otherwise they may face breach of contract claims and/or unfair dismissal claims arising out of procedures followed at the appeal stage.
Providing for the right to increase a disciplinary sanction on appeal will enable managers conducting disciplinary appeal hearings to look at all matters afresh and reach their own conclusions. However, it also is advisable you as an employer take steps to prevent any abuse of the provision as a deterrent to employees to appeal, as this could later be used against you in court. On balance, you need to ensure that your disciplinary procedures are fair and allow for employees to receive a fair hearing and appeal hearing if they require.
While employees might be nervous of the increased use of this provision, it will in fact provide for greater clarity during proceedings. Employees will be able to anticipate whether or not a sanction can be changed, and tailor their legal approach accordingly.
Finally, although many employers might currently be focusing on issues arising from the challenge to calculating holiday pay, I do advise that you ensure that other housekeeping matters, such as the operation of your corporate disciplinary procedures are also kept up to date with current law.
• Jacqueline McCluskey is an employment partner at HBJ Gateley