Can an employer increase a penalty from Final Warning to Dismissal on appeal?
[ch 4: pages 42-43]An employer is not allowed to increase the penalty from final warning to dismissal on appeal unless the written disciplinary procedure expressly allows this, even if new evidence at the appeal stage suggests that the employee’s behaviour was more serious than originally thought. It makes no difference whether the appeal is a “review” of original findings or a “rehearing” of all the evidence (McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031).
Acas Guidance (paragraphs 25 to 28) says: “An appeal must never be used as an opportunity to punish the employee for appealing the decision, and it should not result in any increase in penalty, as this may deter individuals from appealing.”
An employee is free to abandon their appeal at any stage before the final decision has been made, even after all the evidence has been heard. Once the appeal is withdrawn, the employer is not allowed to carry on. Increasing a penalty on appeal would normally be a fundamental breach of contract (McMillan v Airedale NHS Foundation Trust [2014] EWCA Civ 1031).