When is a dismissal not a dismissal?

Morton Fraser Associate Andrew Gibson
Andrew Gibson
Senior Associate
28 November 2022

A successful appeal against dismissal may have unintended consequences for the employee.

In Marangakis v Iceland Foods Limited, the claimant was dismissed in January 2019.  She appealed this decision indicating she would like to be reinstated.  She attended an appeal hearing at which there was discussion about the outcome the claimant wanted to which she stated "I don't want sacked on my record".  The hearing was then adjourned and a few days later the claimant emailed her employer stating she no longer wanted to be reinstated as she felt the mutual trust between her and her employer had been broken.  The claimant repeated this when the appeal hearing reconvened.

Two weeks after the reconvened appeal hearing the claimant was informed her appeal against summary dismissal had been successful, that she would be reinstated with continuity of service and backpay, and a final written warning was substituted for the dismissal.  The claimant did not return to work and was subsequently dismissed in July 2019 for failing to attend work. 

The claimant subsequently raised an unfair dismissal claim relating to the dismissal in January 2019.  The respondent argued that the effect of allowing the appeal was that the claimant was reinstated in employment so that the original dismissal disappeared and could not found an unfair dismissal claim.  The Tribunal found that claimant had not withdrawn her appeal - she was specifically asked this by the Tribunal and confirmed she had not.  The claim for unfair dismissal was rejected. 

The EAT rejected the claimant's appeal.  She had not unambiguously withdrawn her appeal and her wish not to be reinstated was irrelevant.  When her internal appeal was upheld she was reinstated whether she wanted to be or not.  She had not alleged that the July 2019 dismissal was unfair, or that she had been constructively dismissed.

While in this case the "vanishing dismissal" worked to the benefit of the employer, this will not always be the case.  If an appeal against dismissal is lodged and successfully followed through to its conclusion then the employee will be reinstated with backpay, irrespective of what the wishes of the parties might be.  For that reason employers should not uphold an appeal on a "technical" point unless they are happy for the employee to return to work (and to receive backpay).


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