Successful appeal can make dismissal disappear

In a decision published earlier this month, the Employment Appeal Tribunal has explained that the legal effect of a successful appeal against dismissal will normally be to re-instate the employee, whether they like it or not. There have been a number of similar cases looking at contractual disciplinary procedures, but in this ruling the EAT proceeded on the assumption that the same rules applied even if the procedure was not incorporated into the contract of employment.

Mrs Marangakis was an employee at Iceland Foods who had been dismissed for misconduct. She appealed against her dismissal, but made it clear during the appeal process and at the hearing itself that she didn't want to work for Iceland, but wanted “apologies and compensation”. Despite these comments, Iceland continued with the process and decided to uphold her appeal and reinstate her with back pay.

Mrs Marakangis refused to accept her re-instatement and was eventually dismissed for failing to attend work. She then brought unfair dismissal proceedings, complaining that her original dismissal had been unfair.

At the employment tribunal she argued that her comments during the appeal process amounted to a withdrawal of her appeal. The tribunal disagreed, no doubt influenced by her evidence that she had not formally withdrawn her appeal, because ACAS had advised her not to. It therefore dismissed her claim for unfair dismissal, since it was bound to treat the original dismissal she was challenging as having “disappeared”.

The EAT has upheld the employment tribunal’s ruling. It pointed to earlier case law that establishes that the effect of upholding a contractual right of appeal is that the original dismissal disappears for all legal purposes, unless the procedure provides for a different outcome. It follows that the only way a claimant can normally escape this consequence is by withdrawing their appeal. In this case the tribunal had not been asked to decide whether or not Iceland’s procedure was contractual, as the parties had agreed to proceed on the basis that the “disappearing dismissal” rule applied to both types of procedure.

This decision highlights the difficulties that can arise when managing disciplinary appeals. If minded to uphold an appeal against a disciplinary dismissal, employers need to be aware of the need for good communication of the appeal outcome so that the employee feels genuinely welcome back at work.

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