Can an Employer Increase a Disciplinary Sanction During the Appeal Process?

Jul 22, 2014

The Court of Appeal in the case of McMillan –v- Airedale NHS Foundation Trust has found firmly in the negative. The Court held that as the Trust’s disciplinary procedure did not allow for an increase in the sanction at appeal stage this was not permitted.

As most employers will be aware that ACAS Code of Practice provides all employees with the right of appeal against a disciplinary sanction if they are dissatisfied with any element of the disciplinary process. The Court in McMillan confirmed that the purpose of this appeal is to provide protection to the employee from unreasonable action by a manager or employer. The Court felt that it would be incompatible with the ACAS Code for a sanction to be increased where there is no further right of appeal.

The Court confirmed that if employers want this option they must expressly include it within their disciplinary procedure.

If you have any queries concerning a disciplinary matter at work please contact our Gary Smith on 01279 712576 or via email at

Gary Smith

About the author

Gary Smith

Gary joined Nockolds in 2007 and is a Partner in our Employment Law Team. Before joining the firm Gary studied law at the University of Kent. ...

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