Employment Law Cases
Internal appeals and 'vanishing' dismissals
A successful appeal against a dismissal will automatically result in reinstatement back into employment unless the employee objectively and unequivocally withdraws their appeal against dismissal before the appeal is decided. This remains the case even where the employee expressly says to the appeal decision maker that they do not want to return to work.
Ms Marangakis worked 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 Iceland had broken down and as such she no longer wished to be reinstated but instead, she wanted an apology and compensation. Her appeal against the dismissal was successful (a final written warning being substituted for the dismissal) and she was told that she’d be reinstated with continuity of service and back pay. However, she did not return to work and three months later was dismissed for her failure to attend. She brought a claim for unfair dismissal, relying on her original dismissal. She was unsuccessful at tribunal and appealed.
The appeal was rejected.
Where a contractual right of appeal is exercised, the parties are taken to have agreed that, if the appeal succeeds, the employee will be treated as having never been dismissed, irrespective of the employee’s subsequent wishes. The dismissal will, effectively, have ‘vanished’.
Such an outcome can only be avoided if the appeal is properly withdrawn by the employee. This entails objectively construing the words used by the employee. The EAT rejected Ms Marangakis’ argument that by stating she no longer wanted to be reinstated, she was objectively and unequivocally withdrawing her appeal. The EAT took the following factors into account: she could have clearly stated ‘I withdraw my appeal’ (she didn’t); there might be other reasons, apart from seeking reinstatement, for pursuing an appeal; someone appealing against a gross misconduct dismissal might do so to make it easier to find a new job; and despite saying she didn’t want to return to work, Ms Marangakis continued to participate in the appeal.
The concept of the ‘vanishing’ dismissal isn’t new and is, in fact, a long-standing concept having already been considered by the Court of Appeal (see Patel v Folkestone Nursing Home). What is new in this decision is the EAT’s consideration of what amounts to the withdrawal of an appeal.