Can we consider increasing a penalty sanction from final written warning (FWW) to dismissal on appeal?

The opportunity to appeal against a disciplinary decision is essential to natural justice and appeals may be raised by employees on various grounds, including new evidence having come to light, or the undue severity or inconsistency of the penalty imposed.

The LRA Code of Practice does not deal with this specific issue. The non-statutory LRA Guide, Discipline and grievances at work, says that an appeal must never be used as an opportunity to punish the employee for appealing the original decision, and it should not result in any increase in penalty as this may deter individuals from appealing in the future.

In McMillan v Airedale NHS Foundation Trust [2014] IRLR 803 CA, the Court of Appeal