Dismissal vanished on successful appeal even though the claimant did not want reinstatement
The Employment Appeal Tribunal (EAT) has held in Marangakis v Iceland Food Ltd that an employee who successfully appealed against her dismissal for gross misconduct was reinstated, even though she indicated during the appeal process that she did not want to return to work for the employer. The original dismissal "vanished" as a result of the successful appeal, meaning that it could not found an unfair dismissal claim.
The claimant was summarily dismissed for gross misconduct and appealed by email indicating that she wished to be reinstated. She attended an appeal hearing which was then postponed so that further investigations could take place. She then sent an email in which she challenged the disciplinary process, stating that she no longer wished to be reinstated because she believed that mutual trust had broken down. She attended a reconvened appeal hearing at which she reiterated that she no longer wished to work for Iceland Food Ltd (IF Ltd). IF Ltd, after hearing the appeal, informed the claimant that her appeal had been allowed and she was to be reinstated. As she did not return to work she was dismissed for failure to attend, and went on to bring a claim of unfair dismissal, relying on the original dismissal.
The tribunal dismissed her claim, finding that the original dismissal vanished as a consequence of her appeal succeeding, even though she no longer sought reinstatement. The claimant appealed arguing that the tribunal should have concluded that she had withdrawn her appeal, this being the objective intention conveyed by her indication that she no longer wanted to work for IF Ltd.
The EAT dismissed the appeal. It held that, when a contractual right of appeal is exercised, the agreement between the parties is that, should the appeal succeed, the employee will be treated as never having been dismissed. They will then be reinstated with backpay. This is a matter of objective contractual assessment and does not turn on the subjective reason why the employee chose to appeal. The EAT noted that it was assumed in the tribunal that the appeal procedure was contractual and/or that the same rule would apply to a non-contractual procedure, and so the EAT proceeded on the same basis. It also found that the claimant could not be said to have withdrawn her appeal. She could have clearly stated that she wanted to withdraw her appeal rather than merely saying that she no longer wanted to be reinstated. The tribunal was entitled to conclude that the words she used did not, on an objective analysis, indicate a decision to withdraw from the appeal.
Take note: The decision in Marangakis is a useful reminder that the effect of a decision to dismiss being overturned on appeal is that the employee is treated as if they have never been dismissed. If the claimant had made it clear that she wanted to withdraw her appeal she would not have been reinstated and would have been in a better position to bring an unfair dismissal claim.