The dismissal of an employee “vanished” as a result of her successful internal appeal, even though she did not wish to return to work (EAT).
The facts
Mrs Marangakis was employed by Iceland Food Ltd as a Sales Assistant. She was originally dismissed in January 2019 for gross misconduct. She exercised her right to an internal appeal, stating in her written appeal that “It is my wish that I be reinstated…”. However, during the appeal process, she wrote further stating “[the decision maker] asked at the appeal hearing if my desired outcome was the same as per my original appeal letter, the answer to that is quite simply NO. I believe that the mutual trust, which forms part of the contract between us has been broken”. During a meeting, she also said “I don’t want to work for Iceland, I want apologies and compensation…”.
In April 2019, the decision maker decided that Mrs Marangakis’ internal appeal should be allowed and he informed her that she would be reinstated with continuity of service and back pay. She did not return to work and, three months later, she was dismissed for her failure to attend work.
Mrs Marangakis issued a claim in the employment tribunal that the January dismissal (the original dismissal) was unfair. She did not make a claim in relation to the July dismissal. Her claim was unsuccessful, and she appealed to the EAT, which dismissed her appeal.
The below points were key to the tribunal and EAT decisions:
- Where a contractual right of appeal is exercised, the parties are considered to have agreed that, if the appeal succeeds, the employee will be treated as having never been dismissed, and will be reinstated with back pay;
- The dismissal will, effectively, have “vanished”;
- The tribunal assumed that the appeal procedure was contractual and/or that that the same rule would apply to a non-contractual procedure, and the EAT proceeded on the same basis;
- Therefore, if an employee appeals against a dismissal, succeeds in the appeal and is reinstated, the original dismissal vanishes and it cannot found a claim of unfair dismissal;
- Mrs Marangakis’ dismissal had “vanished”;
- The employee can only escape the consequences of a successful appeal by withdrawing the appeal. This is the case even if the employee does not wish to be reinstated;
- Looking objectively at the words she used, Mrs Marangakis had not withdrawn her appeal.
What does this mean for employers?
The EAT commented that the concept of a “vanishing” dismissal is a long standing concept having already been looked at by the Court of Appeal. However, this is the first time that the EAT has considered what constitutes a withdrawal of an appeal, holding that (in deciding if an employee has withdrawn the appeal) it is necessary to consider the objective meaning of the words which the employee contends amounted to a withdrawal. As such, whether an appeal has been withdrawn will always turn on the particular facts of the case.
