The employee in this case is employed as a consultant obstetrician and gynaecologist by the appellant NHS Foundation Trust. She was the subject of a disciplinary investigation and received a final warning after the resultant hearing. She appealed but the appeal panel upheld the complaints and decided to reconvene to consider whether a higher penalty should be applied. Ms McMillan was granted a High Court injunction preventing the Trust from reconsidering the sanction. The Trust appealed and has lost its case.

Of crucial importance in this case was the absence of any explicit contractual right to increase a sanction on appeal. In his concurring judgement, Underhill LJ commented:

"If an employer wishes to have the right under its disciplinary procedures to increase the sanction on appeal it must be expressly provided for. There are, I believe, some employments in which such an express power is indeed conferred, and I can see nothing wrong with that in principle; but it is not the case here." 


Practical Lessons

Employers should be wary of the temptation to increase sanctions when employees exercise their right of appeal. Without an express right to do so, this case points to problems for employers. The Court raised two other issues of concern. The first was the Acas guidance (not the Code of Practice) which states that penalties should not be increased. An additional problem for the Trust in this case was it included in its procedure a phrase that is common in many disciplinary and grievance procedures - "There will be no further right of appeal." The unfairness of an increased penalty (in this case that of dismissal) without the right to appeal the higher sanction was also frowned upon by the court. 
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