This question was addressed by the Court of Appeal in England in McMillan v Airedale NHS Foundation Trust [2014] IRLR 803 CA. In this case, it was held that an employer does not have the right to increase a disciplinary sanction on appeal unless it has express provision to do so in its disciplinary policy. The Court of Appeal focused on the purpose of the right of appeal to protect the employee rather than to offer potential for an employee to suffer greater detriment.

It is important to remember that as an English decision, it is not legally binding in Northern Ireland. However, taking into consideration the guidance on disciplinary procedures published by the LRA which states: “An appeal must never be used to punish the employee for appealing against the original decision. The appeal should not result in any increase in penalty as this may put people off
appealing in the future”, it is likely that the NI courts and tribunals would apply the same reasoning.

In short, if an employee wishes to exercise his/her right to appeal, unless there is an express provision in their contract and/or staff handbook permitting the right to increase a sanction on appeal, the employee should not have their sanction increased.