It depends on whether the disciplinary policy requires the employee’s consent to a lesser penalty being imposed.

In the recent case of Piper v Maidstone & Tunbridge Wells NHS Trust, the EAT found that Mr Piper had jurisdiction to bring an unfair dismissal claim where at internal appeal stage, his employer overturned the decision to dismiss him. Instead, they decided to demote him and transfer him to a new location. His employer’s disciplinary procedures were found to require Mr Piper’s agreement to such a sanction and in the absence of this consent, Mr Piper was still found to have been dismissed by his employer.

This case is an important reminder to employers that disciplinary procedures which permit action short of dismissal (e.g. demotion or transfer), should not be reliant on employee agreement to such action.

Julie Keir