Can an employer convert a disciplinary warning to dismissal on appeal?

25 July 2014: Can an employer convert a disciplinary warning to dismissal on appeal?

Not unless the policy expressly says so, was the answer in the Court of Appeal case of McMillan v Airedale NHS Foundation Trust.

A contractual disciplinary procedure did not give the employer power to increase a sanction from written warning to dismissal on appeal.

In this case, the contract did not set out Trust’s powers on appeal. However that silence did not give the Trust free rein. The appeal procedure was not intended to be a continuation of the sanction process, but an appeal against the sanction imposed.

There is nothing wrong in principle with an employer reserving to itself the right to increase a disciplinary sanction on appeal but that right must be expressly provided for in the relevant procedure.

It would therefore be wise for employers to reserve the right to increase the sanction on appeal in their disciplinary policy, whether or not it is contractual.

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