In the recent case of McMillan v Airedale NHS Foundation Trust, a medical Consultant appealed against a final written warning which had been issued under the Trust's contractual disciplinary policy. The policy did not provide an express right to increase a sanction on appeal by an employee.
In fear of a harsher sanction being imposed, McMillan applied to the High Court for an injunction to stop the appeal hearing going ahead. The injunction was granted but the Trust appealed the decision. With reference to the Acas Guide on Discipline and Grievances, the Court of Appeal stated that the Trust would not be within its rights to issue a more serious sanction because the appeal system was present in the procedure for the employee's benefit.
Lord Justice Floyd noted that had the appeal hearing proceeded and a harsher sanction imposed, McMillan would not have had the right of appeal and that would be a bizarre, and unfair, situation.
Employers can learn from Lord Justice Underhill's comments that should employers want to reserve the right to increase sanctions on appeal, then this is possible but only if it is expressly set out in the disciplinary policy.