The Employment Appeal Tribunal answered this question in the case of Marangakis v Iceland Foods Limited.
In this case the Claimant was employed as a part time Sales Assistant at Iceland and had worked there since 2013. In 2019 the Claimant was dismissed for alleged gross misconduct.
The Claimant appealed this decision in line with the company’s disciplinary policy stating that she wished to be reinstated. An appeal hearing was held, and the Claimant stated she “didn’t want sacked on her record”. The hearing was adjourned so that investigations could be carried out.
After the hearing the Claimant sent an email to the Respondent stating “Mr Keeble asked at the appeal hearing if my desired outcome was the same as per my original appeal letter, the answer to that is quite simply NO. I believe that the mutual trust, which forms part of the contract between us has been broken”. She stated that she was seeking compensation only. The Claimant repeated this at the reconvened appeal hearing stating “I don’t want to work for Iceland, I want apologies and compensation”. She was told “I cannot give you this answer”.
The appeal outcome letter stated that her appeal had been allowed. She was to be reinstated and that her dismissal would be substituted with a final written warning. But after this decision was issued the Claimant did not return to work, and so she was dismissed for her failure to attend work.
The Claimant brought an unfair dismissal claim to the Employment Tribunal regarding the original dismissal. The Tribunal held that because she was reinstated on appeal the original dismissal had disappeared and noted that she did not, at any point, withdraw her appeal. Therefore, her unfair dismissal claim could not be considered.
This decision was appealed, and the Employment Appeal Tribunal also reached the same conclusion. The Claimant had sought to argue that her words had “communicated an intention to withdraw the appeal”. The EAT disagreed with this and said that instead of stating that she did not wish to work at Iceland she could have said that she wanted to withdraw her appeal if that is what she wanted to do. More generally, they concluded that “it is not a reasonable or correct interpretation of the term conferring a right of appeal that a successful appeal results in the employee having an option whether to return to work or not.”
The Claimant had also pointed out that there are other reasons why a person might want to appeal other than reinstatement. They may want to clear their name or make it easier for them to get another job. But the Tribunal nevertheless held that “the fact that a process cannot provide what a person wants does not alter the outcome. The fact that a person does not wish to return to work for a former employer does not prevent a successful appeal resulting in reinstatement into employment.”
For employers the takeaway is that a successful appeal against dismissal results in the original dismissal ‘disappearing’, unless the appellant has made it absolutely clear that they are withdrawing their appeal. What constitutes a clear withdrawal will be an objective assessment.
If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.