It has long been held in Employment Law that a successful appeal against a dismissal by an employee can lead to the dismissal ‘vanishing’. In such circumstances, an unfair dismissal claim will not succeed. In re-examining this area of law last week, the Employment Appeal Tribunal (EAT) held on the facts of the case that where an employee had successfully appealed against a dismissal for gross misconduct and was re-instated, the original dismissal vanished and the unfair dismissal claim failed, notwithstanding the fact that she had indicated during the appeal process that she did not wish to return to work.

Marangakis v Iceland Foods Limited

Facts

The employee was summarily dismissed for gross misconduct. She appealed saying that she wished to be re-instated. She attended the original appeal hearing which was then postponed so that further investigations could take place. After that stage in the appeal, she then changed her mind and said that she no longer wished to be reinstated and believed mutual trust and confidence had broken down. At a reconvened appeal hearing she again reiterated she did not want to work for the company. The conclusion of the appeal was that the employer upheld the appeal and offered to re-instate the employee on a final written warning with continuity of service and all back-pay. Because she had changed her mind and said that she did not want to be reinstated the employee did not return to work and she was eventually dismissed after further procedures, some months down the line, for failure to attend. She went on to bring an unfair dismissal claim which the employer defended on the basis that the original dismissal ‘vanished’.

The Judgment / Comment

The EAT said the dismissal had ‘vanished and her claim failed. The Judgment is good news for employers. It effectively says that where the appeal procedures have been engaged (and it made no distinction here between contractual and non-contractual procedures) if the appeal then succeeded, the employee will be treated as having never been dismissed (particularly on the facts here of course where they were reinstated with continuity and back-pay).

The EAT said it was a matter of contractual assessment that did not turn on the subjective reasoning of the employee. The EAT held that for this not to apply, an employee needed to be absolutely clear and unequivocal that they were withdrawing from the appeal, e.g. the employee could (but didn’t here) have said ‘I withdraw my appeal’. Simply saying that she did not want to be reinstated was not enough, because there may have been other reasons for pursuing the appeal.

This case is a useful reminder that, where an employer is concerned that the original dismissal was indeed unfair or problematic for some other reason, a robust appeal procedure can rectify the error and minimise litigation risk in the Tribunal.

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.

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