By Donal Moon
Have you ever dealt with an employee’s appeal against a warning where, far from wanting to overturn the warning, you think that the disciplinary panel should have imposed a tougher sanction? Do you have to let this go, or can you impose the sanction you feel would have been appropriate?
The answer, according to the Court of Appeal in a recent case is that is it only possible for an appeal panel to increase a disciplinary sanction if the employer’s disciplinary policy expressly gives it the right to do this. The employee in the case had appealed against a warning for misconduct and was able to achieve an injunction against her employer to prevent the appeal panel from reconvening to consider upping the warning to a dismissal after she had tried to withdraw her appeal against the warning. Her employer did not have the contractual right to impose a harsher sanction on appeal.
Whilst it might seem logical to advise clients in the light of this case that they need to ensure that they contracts allow for this, in practice we would not advise an employer to up a disciplinary sanction.
This is because appeals are supposed to be there to protect the employee and to give them the right to appeal against an unfair decision. Allowing appeal panels to increase disciplinary sanctions could put off employees from exercising their right to appeal, which seems to us to be against the spirit of the ACAS Code. It could also expose the employer to the risk of accusations that they are being punished for exercising their rights to appeal a warning, leading to a heightened risk of unfair dismissal and “whistleblowing” claims.
As far as we are concerned, the best solution is in ensuring that the right decision is made by the disciplinary panel in the first place, which may include training and developing those who sit on disciplinary panels.
If you have any concerns about difficult disciplinary issues, you can get expert HR and Employment Law Advice at HR Insight.