There have been two recent cases which have examined the fairness of disciplinary procedures followed by the employer.

The first case relates to increasing a disciplinary sanction upon appeal; the second case considers relying upon a ‘live’ disciplinary sanction which was issued after the conduct was committed for which dismissal was being considered.

McMillan v Airedale NHS Foundation Trust

This case considered whether an employer was entitled to increase a disciplinary sanction on appeal. There was a detailed contractual disciplinary process which referred to the ACAS Code of Practice but it was silent on the issue of increasing sanction upon appeal.

Following a disciplinary hearing, Miss McMillan was issued with a final written warning and she appealed. The appeal hearing was carried out as a rehearing of all the evidence and as a result, the appeal panel indicated that they would meet separately to reach a decision on what sanction was appropriate, up to and including dismissal.

Miss McMillan successfully applied to the High Court for an injunction to prevent the appeal panel meeting to make a decision. The employer appealed but the Court of Appeal ruled that the Trust did not have the right to increase the sanction on appeal so could not dismiss the claimant.

The employer was not entitled to consider dismissal, first, because the disciplinary policy did not expressly state that the sanction could be increased on appeal. Second, if the appeal panel increased the penalty there would be no further right of appeal against the increased sanction and, finally, having the right to increase the penalty on appeal would give the employer a right which is not recognised in the Acas code.

Although employers may consider that including an express right to increase the penalty on appeal might dissuade employees from appealing, caution must be exercised. This case is not authority that an employer can always increase the sanction if the contract provides for it.

Lord Justice Underhill expressed concern that an employer who increases the sanction on appeal could undermine the implied term of trust and confidence in the relationship, in some circumstances. He pointed out also that in terms of the law of unfair dismissal employers must act in accordance with equity.

So, even if you have the contractual right to increase the penalty on appeal, you may still face legal consequences for doing so.

If, for example, the reasoning relates to the employer’s failing to investigate appropriately initially it is likely that the dismissal could be unfair.

Sweeney v Strathclyde Fire Board

Mr Sweeney was employed as a retained fireman with a rank of Watch Commander. On 30 July 2010 he was charged by police with an offence of domestic assault. The criminal case was not heard until March 2011 when he entered a guilty plea. After the assault but before the court hearing, Strathclyde Fire Board issued a final written warning (FWW) to Mr Sweeney because of unauthorised absence (unrelated to the assault case).

Following the guilty plea, Mr Sweeney was suspended from duty and invited to a disciplinary hearing. It was alleged that his criminal conduct was in conflict with the Fire Board’s aims, objectives and policies. Mr Sweeney was subsequently dismissed because of that conflict and the fact that he had a ‘live’ FWW on his file.

The employer would have issued an FWW rather than dismissing, in light of all the circumstances, had it not been for the FWW already imposed.

Mr Sweeney challenged the decision in the employment tribunal. He argued that the FWW did not exist at the time of the offence for which he was being dismissed; he argued that the purpose of a warning is to deter future action but the assault had already happened. At first instance, it was decided that the employer could rely upon a live warning issued after the conduct for which he was dismissed had occurred.

On appeal, the Employment Appeal Tribunal agreed with the tribunal decision and held that the Fire Board were entitled to rely upon the live final written warning, even though it was issued after the incident of domestic assault. While it is correct, they said, to argue that a warning is an admonition that tells the employee that future misconduct will have certain consequences, it is more than that. It is also a recording of the commission of misconduct in the mind of both employer and employee and its existence is a fact the employer is entitled to take into account.