Contractual disciplinary procedure did not allow increase in sanction on appeal

The Court of Appeal has upheld the High Court's decision that an employer could not increase the disciplinary sanction it imposed following the employee's appeal. The employer, an NHS Trust, had incorporated a formal and detailed disciplinary procedure into the employee's contract. The employee appealed against the imposition of a written warning and the Trust contemplated increasing the severity of that sanction, which would lead to the employee's dismissal. The court held that the contractual procedure did not allow for increased penalty on appeal. To construe the procedure in that way was inconsistent with the terms of the contract and the Acas guide on discipline and grievances. If the Trust wished to reserve its right to increase the disciplinary sanction on appeal, that should have been made explicit in the procedure. (McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031.)