Can a disciplinary sanction be increased as a result of an appeal hearing?

The opportunity to appeal against a disciplinary decision is essential to natural justice and appeals may be raised by employees on various grounds, including new evidence having come to light, or the undue severity or inconsistency of the penalty imposed. The non-statutory Acas guide on discipline and grievances at work, which provides good practice advice for dealing with discipline and grievances in the workplace, makes clear that an appeal must not be used as an opportunity to punish the employee for appealing the original decision, and that it should not result in any increase in penalty, as this may deter individuals from appealing.

In McMillan v Airedale NHS Foundation Trust [2014] IRLR 803 CA, the Court of Appeal held that an employer does not have the right to increase a disciplinary sanction on appeal unless it expressly provides for this in its disciplinary procedure. The Court noted that the general understanding is that the right of appeal is conferred for employees' protection and that its exercise will not leave them worse off.

Where new evidence that results in new or more serious allegations being levelled against the employee comes to light during the appeal process, the new allegations should not be dealt with at the appeal hearing simply by increasing the disciplinary sanction. The correct way to deal with the issue is to adjourn the appeal hearing and then commence a disciplinary investigation into the new allegations. If there is a case to answer, this should result in a new disciplinary hearing being convened.