The Employment Appeal Tribunal (EAT) has confirmed in Marangakis v Iceland Foods Ltd that if an employee successfully appeals against their dismissal, it ‘vanishes’ and the employee is automatically reinstated (unless there are contractual terms to the contrary). This means the employee cannot then pursue an unfair dismissal claim.
To avoid such an automatic reinstatement, the employee will need to unequivocally withdraw their appeal before a decision is made. Confirming that they do not want to return to work following a successful appeal will not be enough, as they will have already been reinstated by that point.
Facts
Mrs Marangakis worked for Iceland Food Ltd (Iceland) before being dismissed for gross misconduct. She appealed against her dismissal and initially said she wished to be reinstated. However, during the appeal process she changed her mind and said that she did not want to work for Iceland, but rather wanted apologies and compensation.
The manager hearing the appeal decided to uphold it. Mrs Marangakis was reinstated and given a final written warning. She was also paid back-pay which she tried to return, but which was refused by Iceland. Mrs Marangakis did not return to work and she was dismissed a few months later for her failure to do so.
Mrs Marangakis brought an Employment Tribunal (ET) claim for unfair dismissal (based on the original dismissal for gross misconduct).
ET decision
The ET dismissed Mrs Marangakis’s claim. It said that as her appeal had been successful (meaning that she was reinstated), there was no dismissal on which to base her claim.
Mrs Marangakis appealed on the grounds that she had withdrawn her appeal before she was reinstated.
The EAT decision
The EAT dismissed the appeal, agreeing with the ET that Mrs Marangakis’s dismissal had ‘vanished’, leaving her without a claim for unfair dismissal. The only way she could have avoided this situation was to have withdrawn her appeal, which she had not done.
To effectively withdraw an appeal, an employee needs to say that they wish to do so expressly and unequivocally. Whether they have done so depends on an objective assessment of the meaning of the words used. In this case, Mrs Marangakis said that she did not want to return to work for Iceland. However, she continued to participate in the appeal and not wanting to return to work does not necessarily mean that an employee does not wish to pursue an appeal. For example, an employee who has been dismissed for gross misconduct may wish to establish at appeal that they were not guilty of whatever allegations were made against them. Once reinstated they could resign – meaning they would receive back-pay and likely find it easier to get a new job because they would not have a gross misconduct dismissal on their record.
Fladgate comment
This decision reinforces the importance of having the right of appeal in a disciplinary policy. It is a very useful tool for employers, as it gives them a chance to put things right if the original dismissal is flawed. The decision to an uphold an appeal will automatically reinstate the employee and the original dismissal will vanish, along with their ability to bring an unfair dismissal claim - even if this is not what they wanted.
However, there are a couple of exceptions to this:
- reinstatement will not eradicate the dismissal if the employee has withdrawn their appeal before a decision is made; and
- if the appeal procedure (or other contractual terms) are inconsistent with automatic reinstatement, or the employer agrees to a different outcome with an individual employee, these alternative arrangements will likely prevail and stop the dismissal from vanishing.
This decision clarifies that to successfully withdraw an appeal, the employee must be unequivocal in the words that they use. It is the objective meaning of the words that is important (not what the employee may have intended by using them).
Given this, we recommend that employers:
- carefully consider the effect on the appeal process of any comments made by an employee (whether verbal or in writing) which suggests that they do not want to return to work, or that they wish to withdraw from the appeal process. If their intention is (objectively) unclear you could:
- continue with the appeal and reinstate them - even if this is not what they wanted. This is particularly useful if you consider the original dismissal is flawed and could potentially give rise to a successful claim for unfair dismissal; and
- ask them to clarify in writing if they wish to withdraw;
- check your appeal process to ensure that its terms are consistent with automatic reinstatement (when an appeal is successful) and that any dismissal ‘vanishes’;
- reinstate employees (when their internal appeal is upheld) to the same job with full back pay from the date on which they were first dismissed and ensure that their continuity of employment is preserved;
- beware of employees asking for appeals to be dealt with on any basis other than reinstatement – best not to lose the right to correct a wrong; and
- manage the employee’s return to work carefully to avoid a vanished dismissal turning into a constructive dismissal.
