In a recent Employment Appeal Tribunal (EAT) decision, an employee who had been dismissed, later saw her dismissal “vanish” following a successful appeal process.
In Marangakis v Iceland Food Stores Ltd the Claimant appealed her employer’s decision to summarily dismiss her, initially expressing a wish to be reinstated to her former role. During the appeal process, she changed her mind and, instead, requested compensation for the dismissal. Despite her change in desired outcome, she did not withdraw her appeal and continued to participate in the appeal process.
The appeal process was eventually successful and the Claimant was reinstated. However, the Claimant did not return to work and was later dismissed for her non-attendance. The Claimant lodged a claim in the Employment Tribunal contending that her original dismissal was unfair.
The Claimant was dismissed for alleged gross misconduct on 24 January 2019. She appealed the decision by email on 7 February 2019, expressing her wish to be reinstated into the same role.
An appeal hearing took place on 22 March 2019 before Mr Keeble. At the hearing, the Claimant stated that she did not want “sacked” on her employment record. Mr Keeble suggested that the Claimant should consider what outcome she desired, should the appeal succeed. The appeal hearing was postponed for further investigation.
On 25 March 2019, the Claimant emailed her employer stating that she sought compensation and that her desired outcome was no longer to be reinstated, she no longer wanted to work for the company. Two days later, the reconvened appeal hearing took place and the Claimant once again expressed her desire for financial compensation and requested an apology. At no point did the Claimant formally withdraw her appeal. Mr Keeble explained that he could not provide answers to her requests for compensation and an apology, as he was only appointed to respond to the grounds of appeal.
On 10 April 2019, Mr Keeble wrote to the Claimant informing her that her appeal had been allowed and that she was to be reinstated with continuity of service and backpay. The original decision of summary dismissal was replaced with a final written warning.
Despite being reinstated, the Claimant did not return to work. On 16 July 2019, she was dismissed due to her failure to attend work.
Employment Tribunal decision
The Claimant asserted that her original dismissal on 24 January 2019 was unfair, but made no submissions regarding her later dismissal on 16 July 2019. The employer argued that the successful appeal led to the Claimant being reinstated, therefore the original dismissal had vanished and a finding of unfair dismissal could not be made.
The 2018 judgment of the Court of Appeal in Folkestone Nursing Home Ltd v Patel is the key precedent for vanishing dismissals. The Court of Appeal held that there is an implicit term in an employment contract providing the employee with a right to appeal against a dismissal. If that appeal is lodged and is successful, both the employer and employee are bound to treat the employment relationship as having remained in existence throughout. The initial dismissal effectively vanishes and the employment relationship continues as it was pre-dismissal. Consequently, there has been no dismissal and therefore no unfair dismissal claim arises.
The Employment Tribunal considered the judgment in Patel and determined the core question it had to answer:
- “Where the employee expressly no longer seeks reinstatement, but nonetheless continues with her appeal, does the original dismissal still vanish if the employer reinstates the employee?”
The Employment Tribunal concluded that the dismissal does vanish and referred to the following circumstances discussed in Patel:
- It is only if the appeal is withdrawn can an employee escape the consequences of a successful appeal in law. If the employee continues with the appeal it is at their own risk.
- Dismissal vanishes upon reinstatement on an objective basis. The subjective desires of the appellant are not relevant.
- Unless there is withdrawal from the appeal process, both the employee and employer will be bound by the reinstated contract of employment.
The Claimant appealed on the grounds that the Employment Tribunal had erred in law in concluding she had not withdrawn her appeal. The parties agreed that determination of whether there is a withdrawal from the appeal is a matter of objectively construing the words used. The Claimant contended that on an objective construction, her email of 25 March 2019 and her expressed wish for compensation and to no longer work for the employer on 27 March 2019, evidenced her withdrawal of the appeal.
The EAT referred to Patel and agreed that “if an appeal is lodged, pursued to its conclusion and is successful, the employer and employee are bound to treat the dismissal as not having occurred irrespective of what the employee’s subjective wishes may have been in instituting and prosecuting the appeal.”
The EAT upheld the decision of the Employment Tribunal and rejected the Claimant’s contention that her email and statements objectively withdrew her claim. The EAT analysed the words the Claimant had used and stated that she could have said “I withdraw my appeal” if that is what she had wanted to do. Further, the Claimant told the Employment Tribunal she did not withdraw her appeal as Acas advised her not to do so, this evidence was accepted and found as a fact that the appeal had not been withdrawn.
Whilst it was not a factor in this case, the EAT noted that an appeal procedure’s express terms might negate a dismissal vanishing if the appeal is successful – it would depend on the wording contained in the particular contract or grievance policy.
The concept of a vanishing dismissal is firmly entrenched by Patel and followed in Marangakis, and employers and employees need to be aware of the effect a vanishing dismissal has on any potential unfair dismissal claim – namely, that an employee has no right to bring a claim if reinstatement has occurred.
The case demonstrates the need for employees (and their advisers) to carefully consider the outcome they desire before beginning an appeal process. If an appeal is successfully pursued, each party will be bound by the decision.
The case also highlights the need for plain, clear and objective language to be used should an employee decide to withdraw an appeal.
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