The Employment Appeal Tribunal has confirmed that where a dismissal is overturned on appeal, the dismissal of the employee ‘vanishes’ and they are reinstated, whether they wish to or not.
In the case of Marangakis v Iceland Foods Ltd the employee was dismissed for gross misconduct in January 2019. She appealed that decision and indicated that she wished to be reinstated, however she subsequently changed her mind as she felt that mutual trust and confidence had broken down. In her appeal hearing she stated “I don’t want to work for Iceland, I want apologies and compensation.” The employer upheld her appeal and reinstated Ms Marangakis but she refused to return to work. She was then subsequently dismissed in July 2019 for her failure to attend work.
Ms Marangakis brought a claim in the Employment Tribunal relating to her January 2019 dismissal. The Employment Tribunal decided that it had no jurisdiction to hear the claim as she had not in fact been dismissed in January 2019, the dismissal had ‘vanished’ by virtue of her successful appeal. This decision has been emphatically endorsed by the Employment Appeal Tribunal which confirmed that where a dismissal is overturned on appeal, the parties are required to treat the dismissal as not having occurred. The employee’s wishes are irrelevant to this outcome. Although the employee is entitled to withdraw their appeal against dismissal, in this case Ms Marangakis had not done so.
This case emphasises the power an appeal has in the dismissal process, enabling all previous decisions to be swept aside. It can though pose a real dilemma for employees who don’t feel as though they want to return to work for the employer as the ACAS Code of Practice sets out that employee’s who are unhappy with their dismissal should appeal and an unreasonable failure to comply with the ACAS Code can lead to a reduction in potential compensation of up to 25%. So an employee who wishes to pursue a claim for unfair dismissal could be faced with returning to an employer they don’t want to work for (and forfeiting their unfair dismissal claim) or not appealing and having a significant proportion of their compensation reduced.
If you are involved in a dismissal process either at the initial phase or the appeal please do speak with our specialist employment team on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.