The Court of Appeal of England and Wales has recently upheld an injunction preventing an employer from changing a final written warning issued to an employee to a dismissal on appeal.

Miss McMillan ('Miss M') was the subject of disciplinary proceedings commenced by her employer, Airedale Foundation Trust ('the Trust') based on an allegation that she had given inconsistent accounts about what had occurred at an adverse incident in June 2010.

In November 2011, an internal disciplinary panel upheld two complaints of misconduct against Miss M, resulting in her receiving a final written warning.

Unhappy with the outcome, Miss M decided to appeal the disciplinary panel's decision using the internal appeal procedure. The Trust's position was that the appeal panel would reconsider all the available evidence to determine an appropriate outcome. In effect, this provided for a 'fresh hearing'.

Unfortunately for Miss M, the appeal panel decided to uphold the findings of misconduct and was scheduled to reconvene at a later date to consider what sanction should be imposed. However, a few days before the panel was due to reconvene, Miss M was made aware that the Trust's position on appeal had changed. Rather than issuing a final warning, the Trust now sought Miss M's dismissal.

Miss M didn't fancy rolling the dice with the appeal panel and sought to withdraw her appeal, ultimately commencing proceedings for an injunction to prevent the appeal panel from considering the matter further (and potentially increasing Miss M's sanction).

The Trust appealed the granting of the injunction, but its appeal was dismissed. In reaching its decision, the Court of Appeal focused on two issues:

  1. whether the appeal panel was permitted under Miss M's contract of employment to impose a more severe sanction; and
  2. whether, having been put on notice that Miss M had sought to withdraw her appeal, the appeal panel could proceed to consider the sanction issue consistently with her contract of employment.

In both instances, the Court of Appeal sided with Miss M.

Notwithstanding its decision, the Court of Appeal noted that it might be possible for an employer to contractually reserve the right to increase a sanction on appeal, but, in this case, the Trust's contractual disciplinary policy had not done so. It concluded that the Trust could not increase the sanction on appeal as this would amount to a breach of contract.

In addition, the Trust's contractual disciplinary policy only gave the right of appeal to the employee. The appeal process was not intended to give the Trust a further opportunity to consider whether or not a sanction was too lenient. Fundamentally, the appeal was intended to be for the employee's benefit.

The Court also observed that there was no provision to appeal the appeal panel's assessment of what was an appropriate sanction. In the circumstances, an employee could find themselves in a position where they were subjected to a more severe sanction with no further right of appeal. This would leave the fairness of the procedure open to challenge.

Issues arising

Whilst the desire to have the ability to increase sanctions on appeal may certainly divide opinion, the ability to review sanctions where new information has come to light during the disciplinary process, for example, may well be a reasonable one.

To protect their position, employers should reserve this facility expressly in writing, preferably so it forms part of the employee's contractual terms. From a procedural perspective, a further right of appeal from the appeal panel's decision on sanction should ideally also be incorporated.

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