UK: Disciplinaries - no right to increase sanction on appeal unless express provision

An employer has no contractual right to increase a disciplinary sanction on appeal under a contractual disciplinary policy unless the policy expressly permits this.

The Court of Appeal has ruled that the right to appeal is provided for an employee's benefit and therefore, where a policy is silent on the issue and there is no second stage of appeal, there is no implied power to increase the disciplinary sanction on appeal. The Court noted that the non-statutory Acas guide on discipline expressly states that an appeal should not result in an increase in penalty.

The Court in this case issued an injunction restraining the employer from reconsidering the sanction. Employers without contractual procedures could face unfair dismissal claims if a sanction is increased to dismissal on appeal.

Employers wishing to reserve the right to increase a sanction on an appeal should do so expressly. Such an appeal should be a re-hearing rather than a review of the decision below, and ideally should also provide for a further stage of appeal in relation to the sanction, in order to help defend claims that any subsequent dismissal is unfair.

(McMillan v Airedale NHS Foundation Trust, CoA)