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In over twenty years I have never come across this issue, usually,  an employee who has been disciplined and follows the company appeal against the sanction imposed has it confirmed or reduced.  But  Airedale NHS Foundation Trust took a different view and the employee (a consultant obstetrician and gynecologist) took the Trust to the High Court.

The employer undertook an investigation which concluded that there was evidence that Miss McMillan (employee) had not provided “a full and honest account” of the circumstances surrounding the care of the patient at a meeting to review the incident the and decided that there was a case of misconduct for her to answer which should be referred to a disciplinary panel.

The outcome of the disciplinary proceedings concluded that Miss McMillan had not given a full and honest account and issued the employee with a final written warning on condition that she agreed to an action plan being put in place to address improvements in her behaviour, and that she should fully comply with its requirements and demonstrate the necessary improvements. The warning was to be placed on her personal file for a period of 12 months and was to be disregarded after that time, provided that no further misconduct occurred. Any further misconduct was likely to result in future disciplinary action and prompted to dismissal.

She appealed

From waning to dismissal

A somewhat acrimonious appeal hearing took place which found that the conduct of Miss McMillan amounted to a breach of trust which was fundamentally incompatible with her continued employment as a Consultant Obstetrician and Gynaecologist with the Trust. It asserted that, as a result of this episode, consultant colleagues and professional clinical leaders had lost trust and confidence in her and that the relationship between Miss McMillan and her colleagues had fundamentally and irrevocably broken down. [In effect, therefore, it called for her dismissal, though it is not apparent whether what was contemplated was a summary dismissal or a termination of her contract on notice.]

High court, not employment tribunal

On 14th August 2012, proceedings were commenced by which Miss McMillan sought an injunction to restrain the Trust from reconvening the appeal hearing to consider issues of sanction and, further or alternatively, to restrain the Trust from increasing the disciplinary sanction on any such hearing. The claim form also included a claim for damages. Particulars of Claim were served with the Claim Form, though they were subsequently amended on 5th September 2012.

Miss McMillan also sought immediate interim injunctive relief. Her application was disposed of by way of undertakings under which the Trust undertook, until trial or further order, not to reconvene an appeal panel hearing to consider issues of sanction or any further matters under the appeal initiated by Miss McMillan and not to seek to terminate her contract of employment.

The trial eventually took place over eight days in December 2012 and February 2013 resulting in the judgement stipulating that  “clear and express words in the contract would be required in order to confer a power to increase a sanction on an Appeal Panel.”

Now we know!

Full details of the judgement from  Judge Hegarty QC in, McMillan v Airedale NHS Foundation Trust [2013] EWHC 1504 QB: –read judgment


Thanks to UK Human Rights Watch for bringing this case to my attention.