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EAT decision acts as a reminder of the vanishing effect of successful appeals against dismissal
The Employment Appeal Tribunal (“EAT”) in the case of Marangakis v Iceland Food Ltd, has recently considered the question of what amounts to a withdrawal of an appeal.
The Claimant was summarily dismissed by Iceland Food Ltd (IF Ltd) for gross misconduct, she subsequently appealed against her dismissal under an appeal procedure, indicating that she wished to be reinstated. Prior to the appeal outcome, the Claimant changed her mind and confirmed to IF Ltd that she did not want to be reinstated and that she was instead looking for an “apology and compensation”. In doing so, the Claimant did not expressly refer to withdrawing her appeal, and so, her appeal was successful, and she was reinstated. The Claimant did not return to work and was then dismissed for failure to attend work. She subsequently brought an unfair dismissal claim in relation to her original dismissal.
The Employment Tribunal (“ET”) held that her ‘original’ dismissal had ‘vanished’ as a result of her reinstatement. Ms Marangakis appealed against the ET’s decision.
Where an employee appeals against their dismissal, and their appeal is successful, reinstatement to their previous role is automatic. As a result of that, both the employer and the employee are bound to treat the original dismissal as not having happened. Put simply, the original dismissal ‘vanishes’. Folkestone Nursing Home Ltd v Patel  EWCA Civ 1689
The EAT agreed with the decision of the ET and dismissed Ms Marangakis’s appeal. In particular, the EAT reiterated that the Claimant’s express wish not to be reinstated did not automatically result in a withdrawal of her appeal against dismissal. As a result, her appeal continued and when it was successful, she was automatically – despite her wishes – reinstated, and it followed that her original dismissal vanished and could not be relied upon in bringing proceedings.
This case reiterates the concept of ‘vanishing dismissal’ and is a useful reminder to employers of the rectifying powers of overturning a decision to dismiss such that the dismissal vanishes and removes a cause of action for unfair dismissal relating to it. Practically, this case particularly highlights the importance of employers carefully reviewing what an employee says about a desired outcome and any changes to that. The facts in this case highlight what is required for an employee to withdraw from an appeal – such as to remove an employer’s obligation to conclude that process. A refusal to be reinstated as an outcome of the appeal, does not automatically amount to a withdrawal of the appeal; if an employee wishes to withdraw their appeal, they need to be explicit.