The disappearing dismissal

Where an employee appeals against a decision of their dismissal, even if they have stated they do not wish to return to their employment, their reinstatement will be automatic upon a successful appeal.

The original dismissal will be treated as if it has simply vanished and is of no effect. As a matter of law and logic, if there is no dismissal, then the employee is not able to bring a claim of unfair dismissal.

Facts

In Marangakis v Iceland Foods Limited, M was summarily dismissed by her employer for gross misconduct on 24 January 2019. M appealed the decision to dismiss, and in the appeal, she stated that she wanted to be reinstated. Her appeal was ultimately successful, and Iceland reinstated her employment on 10 April 2019 with continuity of service and backpay. A final written warning was substituted for the original decision to dismiss. However, during the appeal process M had told Iceland that she no longer wished to be reinstated, and instead that she wanted a corporate apology and financial compensation. At no stage did M withdraw her appeal.

M was subsequently dismissed in July 2019 after refusing to return to work. She brought a claim of unfair dismissal in which she asserted that the dismissal which was unfair was the original one on 24 January 2019. She did not bring a claim about the subsequent dismissal in July 2019, nor did she claim that she had been constructively dismissed.

The issues in question were: was M dismissed on 24 January 2019 and if so, was M’s dismissal unfair?

ET and EAT decision

The Employment Tribunal (ET) acknowledged that M had made it clear in the appeal process that she did not wish to be reinstated, but she had not formally withdrawn her appeal. By virtue of not withdrawing the appeal, M took the risk that a successful appeal would mean that she was reinstated to her employment. Her successful appeal and the decision to reinstate her meant, in law, that the dismissal on 24 January 2019 had vanished and was of no legal effect. For this reason, the ET dismissed M’s claim as it had no jurisdiction to consider the claim for unfair dismissal.

The Employment Appeal Tribunal (EAT) agreed with the ET findings and dismissed M’s appeal.

The EAT made it clear that if an appeal is lodged, pursued to its conclusions and is successful, the employer and employee are bound to treat the dismissal as not having occurred irrespective of what the employee’s subjective wishes may have been in pursuing the appeal. An employee may have reasons other than reinstatement for their appeal, such as clearing their name or seeking to establish they were not guilty of gross misconduct. But, if an employee appeals, the option of reinstatement will always be open to the employer if an employee appeals a dismissal, even if the employee states expressly that they do not want to be reinstated. Where the employer does make this decision, the reinstatement means that the original dismissal disappears, so if an employee does not want to risk being reinstated, they must formally withdraw their appeal and cease participation in the appeal process altogether.

What does this mean for employers?

The concept of “vanishing dismissal” may provide some employers with comfort if they are seeking to “undo” any flaws within the disciplinary procedure which resulted in the earlier dismissal. As the original dismissal “disappears”, the employer removes the risk of a claim of unfair dismissal in relation to the original dismissal. It leaves the employee with the option of accepting reinstatement or resigning and seeking to claim constructive unfair dismissal. Returning to work might be a challenge. If they resign, there is no guarantee that a claim of constructive unfair dismissal will be successful, an ET will need to conclude that the employer had previously acted in fundamental breach of contract and that this was the reason for the employee’s resignation. In this case, the ET commented that M would have had a strong case for unfair dismissal if the dismissal had not disappeared. A key takeaway for employers is that the appeals process allows for any potential failures found in the original disciplinary procedure to be corrected.

Note that the employee may also still be able to bring any discrimination-related claims which may arise out of the disciplinary action and dismissal, regardless of whether they accept reinstatement or not.

For this reason, it is important for employers to make sure a reasonable and fair process has been followed when considering allegations of misconduct against an employee, which could result in a summary dismissal.

Options open to an employee

Employees may have various reasons (other than reinstatement) for appealing against a decision of their dismissal. Most often it will be to “clear their name”. However, they need to be alive to the fact that when submitting an appeal there is a risk that they may be reinstated to their employment, even if they do not wish to return to their employment, rendering their original dismissal as having never happened.

If employees do not wish to be reinstated, this decision reinforces the point that they will need to unequivocally withdraw from the appeal process altogether (before its conclusion). If they do not do so, they may well be in a weaker position, going from having a “normal” unfair dismissal claim with good prospects of success, to having to resign alleging a breakdown in trust and confidence and having to pursue a claim for constructive unfair dismissal which may not have as good prospects of success.