McMillan v Airedale NHS Foundation Trust

An employee’s contractual disciplinary appeal, conferred solely for the employee’s benefit, does not carry an implied power to increase the sanction imposed at first instance. A power to impose a more severe sanction cannot be created by reading provisions governing capability appeals across into conduct proceedings, particularly where the governing code contains no express power and no cross-appeal is available to the employer. The employee may withdraw the appeal at any stage before its final conclusion. Procedural proposals for a rehearing do not vary existing contractual rights unless the correspondence objectively creates a binding agreement supported by consideration and an intention to create legal relations.

The claimant, a consultant obstetrician employed by the defendant NHS foundation trust, received a final written warning following disciplinary findings concerning statements made after a serious clinical incident and at a root-cause-analysis meeting. She appealed. The appeal panel conducted a rehearing, upheld the findings and proposed to consider sanction, including possible dismissal. The claimant sought to withdraw the appeal and commenced contractual proceedings to restrain any increase in sanction.

The issues were whether the contract and incorporated disciplinary code permitted an increased sanction on appeal, whether the appeal could be withdrawn, whether correspondence created a collateral agreement conferring such a power, and whether the appeal process involved repudiatory breach or bias.

1. No contractual power to increase sanction. The employment contract incorporated the Trust’s disciplinary procedures, including the appeal arrangements. The Disciplinary Code permitted an employee to appeal against a warning or dismissal but contained no express power to increase sanction and no employer cross-appeal. The word “vary” in the separate capability procedure did not confer such a power. The capability provisions could not be read across into conduct proceedings, which applied to a wider class of employees and served different purposes. Even in capability cases, clear words would be required before an appeal could increase the sanction.
2. Withdrawal of appeal. The appeal right was conferred on the employee solely for her benefit. Neither the Code nor the general duties of co-operation and mutual trust and confidence justified an implied restriction preventing withdrawal. The claimant was entitled to withdraw the appeal at any stage, including after the merits had been determined but before sanction was decided. The panel therefore had no power to increase the sanction after withdrawal.
3. No collateral agreement. The February 2012 correspondence stated the panel’s intended procedure and invited concerns. It was not an offer capable of acceptance, and the solicitor’s response did not amount to contractual acceptance of an increase in sanction. There was also no sufficient consideration or intention to create binding contractual relations. The correspondence did not vary the claimant’s existing contractual rights.
4. Alternative procedural findings. If a binding agreement had existed, the inquisitorial procedure adopted, without a representative presenting the management case, would not have been the comprehensive adversarial rehearing objectively contemplated. It would have constituted a serious breach, subject to issues of acceptance, waiver or affirmation. The court nevertheless found no actual or apparent bias sufficient to vitiate the process and did not review the substantive merits of the disciplinary findings.
5. Relief. The court rejected undue-delay and “micro-management” objections. It was appropriate to restrain continuation of an appeal process contrary to the claimant’s contractual rights, while recognising that an injunction would not ordinarily restrain dismissal itself. Permanent injunctive and declaratory relief was indicated.

First-instance contractual proceedings in the High Court. The judgment states that interim undertakings had been given before trial restraining reconvening of the appeal panel and termination of the claimant’s employment.