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
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
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
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:
whether the appeal panel was permitted under Miss M's
contract of employment to impose a more severe sanction; and
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.
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
On 1 January 2017 the Financial Services Rule Book 2016 comes into operation. With this will be the requirement on all Isle of Man licence holders to establish, implement and maintain an effective whistleblowing policy.
The Ministry of Human Resources has recently issued a string of new ministerial resolutions and decrees designed to address gaps in the employment regulatory framework and reinforce existing legislation...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).