Court of Appeal
The Court of Appeal has today handed down judgment in the case of Airedale NHS Foundation Trust v McMillan. The case concerned a consultant obstetrician who had received a final written warning from her employer (the Trust) for alleged misconduct. She appealed the warning, both in terms of the findings made and the sanction imposed. The internal appeal panel, having upheld the original finding of misconduct, went on to consider sanction. The issue was whether the appeal panel could impose a more severe sanction than imposed by the disciplinary panel, in particular dismissal. HHJ Hegarty QC, sitting as a deputy High Court Judge, held, in a judgment handed down on 5 June 2013, that there was no power, express or implied, to increase sanction on appeal and granted a permanent injunction against the Trust.
The Court of Appeal dismissed the Trust’s appeal, although it adopted slightly different reasoning for doing so. Per Floyd LJ (giving the leading judgment), if the contract had left completely open the procedure to be adopted, then the Trust would have been able to increase sanction on appeal , subject only to constraints imposed by other sources, such as the implied term of trust and confidence (para 54). However, the proper construction of the contract in this case, in particular the reservation of the right of appeal to the employee “against” a written warning or dismissal, the lack of the right to any further appeal and the provisions of the ACAS guide which formed part of the factual matrix, meant that the contract in this case provided Miss McMillan with a right of appeal “which could not result in an increase in sanction” (paras 55-67). Underhill LJ went further holding that “If an employer wishes to have the right under its disciplinary procedures to increase the sanction on appeal it must be expressly provided for”. Gloster LJ simply stated that she agreed with both judgments.
Therefore, unless a contract specifically provides for an increase in sanction on appeal, employers should be wary of seeking to do so. Although the difference of approach between Underhill LJ and Floyd LJ leaves the position unclear as a matter of law where the contract is silent on the point, Floyd LJ’s interpretation of the contract in this case as meaning, in effect, that sanction could not be increased on appeal, is likely to mean that there are few contracts in practice which really are silent on the matter. Moreover, employers who wish to increase sanction on appeal and whose contracts do not expressly provide for such an increase, would be well advised to think carefully before doing so, not only given the risk of contractual proceedings, but also the risk of unfair dismissal claims, particularly if there is no good reason for increasing sanction on appeal and if no further right of appeal against dismissal is provided for or permitted.
Mary O’Rourke QC with Nicola Newbegin appeared for Miss McMillan (the doctor). Mark Sutton QC with Ben Cooper appeared for the Trust. All are members of Old Square Chambers.
 EWCA Civ 1031
McMillan, Airedale NHS, Mary O’Rourke, Nicola Newbegin, Mark Sutton, Ben Cooper
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