The Vanishing Dismissal - When an Employee Does Not Want To Be Re-instated
The EAT has held that an original dismissal still 'vanishes' after a successful appeal where the employee has said they no longer want to be reinstated but continued with their appeal in any event.
Employee No Longer Wants to Pursue the Same Appeal Outcome
In Marangakis v Iceland Frozen Foods the Claimant, Ms Marangakis, was employed as a part-time Sales Assistant at one of Iceland's branches. She was dismissed for alleged gross misconduct and appealed, indicating that she wished to be reinstated. As matters progressed, Ms Marangakis wrote to Iceland stating that she no longer wished to pursue the same outcome as she did when first appealing. She believed that the mutual trust between her and the company had broken down and as such, she no longer wished to be reinstated but instead, she wanted an apology and compensation.
Ms Marangakis' appeal against the dismissal was successful. However, she did not return to work and was subsequently dismissed for her failure to attend.
Ms Marangakis proceeded to bring in an unfair dismissal claim, relying on the original dismissal for gross misconduct. Applying the facts of Folkestone Nursing Home Ltd v Patel, the employment tribunal held that it did not have the jurisdiction to consider the complaint as the original dismissal had 'vanished' once Ms Marangakis was reinstated. She appealed against the decision, on the basis that her statement that she did not want her job back amounted to a withdrawal from the appeal.
The EAT rejected the appeal. Where an appeal against dismissal is successful, the parties are bound to treat the dismissal as not having occurred, irrespective of the employee's subsequent wishes. This outcome can only be avoided if an appeal is properly withdrawn by the employee.
The test when assessing whether there has been a withdrawal from an appeal is an objective one and involves construing the employee's words. It does not necessarily follow from a statement that a person does not wish to return to work. In reaching this decision, the EAT explained that Ms Marangakis should have unequivocally and expressly stated that she was withdrawing her appeal and she should have ceased to participate in the appeal. On the facts of the case, the tribunal was entitled to conclude that Ms Marangakis did not indicate a decision to withdraw from the appeal.
What Happens When an Appeal Against Dismissal is Upheld?
It is important for employers and employees to understand the concept of the 'vanishing dismissal'. Once an appeal against a dismissal decision is upheld, it will revoke the initial dismissal. The employee will be treated as if the dismissal had never occurred in the first place. This means their continuity of employment is preserved and they will be entitled to receive back pay for the period between the dismissal and the re-engagement.
In order to avoid possible re-instatement the employee will need to clearly state that they are withdrawing from the appeal. Simply stating that they no longer wish to be reinstated (which was the case here) may be considered insufficient depending on all the facts of the case.
This case also serves as a useful reminder that where an employer acknowledges that an initial dismissal was in fact unfair, a robust appeal procedure can resolve matters at an early stage and avoid the risk of litigation in the Tribunal.