Effect of appeal on further disciplinary action

If an employee appeals against disciplinary action less than dismissal, such as a warning, but the appeal has not yet been heard, that disciplinary action should be disregarded in any separate disciplinary action relating to other complaints. This is because the sanction under appeal may be overturned if the appeal is successful.

In Tower Hamlets Health Authority v Anthony [1989] IRLR 394, the employee, Ms Anthony, had been given a final written warning, which she intended to appeal against. However, before the appeal was heard, she was disciplined again. Given the outstanding final warning, her employer dismissed her. The EAT ruled that the employer’s failure to take account of the impending appeal made her dismissal unfair.