“Vanishing Dismissals” – the possible consequence of a successful appeal

The Claimant, Ms Marangakis (“the Employee”) was summarily dismissed for alleged gross misconduct in January 2019 by Iceland Foods Limited (“the Respondent”). She appealed the decision in line with the Respondent’s disciplinary policy stating it was her “wish [to] be reinstated back into the position that [she] held before this alleged Incident took place”.

However, after receiving documentation and CCTV footage via a Subject Access Request, the Employee decided that she no longer wanted her job back because she had lost all trust in her employer. Specifically, in her appeal hearing the Employee stated that she no longer “want[ed] to work for Iceland, [she] want[ed] apologies and compensation“. However, she did not explicitly withdraw her appeal and so the appeal process continued. The appeal was ultimately allowed, and the Employee was re-instated to her role at the Respondent with continuity of service and backpay. The Employee did not attend work and she was subsequently dismissed as a result.

Following her dismissal the Employee then pursued an unfair dismissal claim in the Employment Tribunal (“ET”) against the Respondents.

The ET considered whether the original dismissal had “vanished” on reinstatement, despite circumstances where the Employee did not want to return to work.  Relying on caselaw, including the case of Folkstone Nursing Home Ltd v Patel [2018] EWCA Civ 1689, [2019] I.C.R., the ET found that the concept of a “vanishing dismissal” is long standing. If a person appeals against dismissal, succeeds in the appeal and is reinstated, the original dismissal “disappears” and is deemed never to have occurred – with the consequence that it cannot then found a claim of unfair dismissal. According to the Patel case, only if the appeal is withdrawn can an employee “escape” the consequences of a successful appeal in law. Indeed, since the dismissal vanishing upon reinstatement is determined on an objective basis, the Employee’s subjective intention or desires are not relevant where the appeal has not been explicitly withdrawn.

Accordingly, the ET found it had no jurisdiction to consider the Employee’s claim for unfair dismissal.

The Appeal

The Employee appealed to the EAT on the basis that her statement that she did not want her job back amounted to a withdrawal from the appeal.

The concept of a “vanishing dismissal” on an appeal succeeding was common ground and thus, it was necessary for the EAT to consider the objective meaning of the words which the employee contended amounted to a withdrawal.  On the facts of the case, the EAT decided that the Employee’s statement – that she no longer wished to work for the Respondent – was not sufficient to withdraw her appeal.  Therefore, the parties were bound to honour the appeal findings and treat the dismissal as not having occurred, irrespective of the employee’s subjective wishes.

Comment

This case reiterates the concept of the “vanishing dismissal” and its application. It provides a useful reminder to employers that by overturning a dismissal decision, the dismissal will usually be deemed to have “vanished”, thereby removing a potential cause of action for unfair dismissal (though the possibility of constructive unfair dismissal may remain depending on the particular facts).

The case also provides a useful example to employees of the importance of being explicit in their objectives; where they do not wish to be re-instated, they must clearly and definitively withdraw their appeal.

Employees should be aware that the ACAS Code of Practice sets out that employees should appeal a decision where they are not happy with it. Unreasonable failure to comply with the ACAS Code can lead to a reduction in potential compensation of up to 25%. Accordingly, employees may appeal simply as a matter of process on the assumption that reinstatement won’t be granted (and indeed this is the case more often than not). However, this case clearly shows that where reinstatement is a very real possibility, this leaves the employee with a potential dilemma: appeal the dismissal (which necessarily carries the possibility of re-instatement) and be faced with returning to a position which they do not want, and in so doing, forfeit a possible future unfair dismissal claim; or not appealing and having a significant proportion of their compensation reduced should they later pursue the matter – and succeed – in the ET.

Yet another reason why it is always sensible to seek professional legal advice in the event of any employment dispute.