A successful appeal means the dismissal simply “vanishes”, says the Employment Appeal Tribunal
In the case of Marangakis v Iceland Foods Ltd, the employee was dismissed in January 2019 for gross misconduct.
She appealed against the dismissal and, initially, requested that she be reinstated back into the organisation.
However, as the appeal progressed, she changed her mind and instead asserted that the term of mutual of trust and confidence, which must be present within an employment relationship, had been broken so she felt she could no longer work there.
She asked for an apology and compensation but said she did not want to return to work.
Her appeal was upheld in April 2019 and was reinstated with full continuity of service and back pay for the time between the initial dismissal and appeal outcome that she had not been in work.
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The employee still believed the breach in mutual trust was irreversible so did not return to work. As a result, she was (re-)dismissed three months later for her refusal to attend work.
She claimed unfair dismissal at employment tribunal on the basis that her initial January 2019 dismissal was unfair.
The Employment Tribunal (ET) rejected her claim, so she appealed to the Employment Appeal Tribunal (EAT).
The EAT agreed fully with the ET and did not uphold the claim.
When making its decision, the EAT highlighted that, where an employee exercises their contractual right to appeal and is successful, it is expected that they will be treated as having never been dismissed and will be reinstated with back pay. As such, the dismissal will, effectively, have “vanished.”
The judge said “On an objective analysis of the words she used, the claimant stated that she did not want to return to work for the respondent rather than that she wanted to withdraw he appeal Without requiring an excessive level of formality, she could have said “I withdraw my appeal”, if that had been what she wanted to do.
“In all the circumstances, I consider that the employment tribunal was entitled to conclude that the words used by the claimant did not, on an objective analysis, indicate a decision to withdraw from the appeal. The employment tribunal was correct to hold that the claimant had not withdrawn from the appeal and so the original dismissal could not be relied upon.”
To find out more about appeals, visit BrAInbox today where you can find answers to questions like Can an employee appeal a capability dismissal?
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