Sacked, but not really – the curious case of the disappearing dismissal

Is it possible for someone to be dismissed and then for that dismissal to ‘disappear’? The answer is yes and it’s not as uncommon as you might think.

A worker who successfully appealed against her dismissal for gross misconduct – but who later decided she didn’t actually want her job back – could not then claim she’d been unfairly sacked in the first place, the Employment Appeal Tribunal ruled.

However, if the employee had formally withdrawn her appeal, she would not then have forfeited her chance to claim unfair dismissal. Because she didn’t do this, her initial dismissal had, effectively, disappeared.

It’s a confusing ‘first you see it, now you don’t’ kind of case which clearly underlines the importance of taking specialist legal advice to ensure you know exactly what you need to do and when to ensure you get the outcome you want.

What happened in this vanishing dismissal case?

Former Iceland Foods Ltd sales assistant, Mrs K Marangakis, was dismissed for gross misconduct on 24 January 2019 after working in one of the chain’s Surrey stores for six years.

She appealed, indicating she wanted to be reinstated, but by 25 March said she’d changed her mind because she believed trust between her and her employer had broken down.

On 10 April, Mrs Marangakis’ appeal was allowed and she was told she had her job back with continuity of service and backpay. The original decision to dismiss her was replaced with a final written warning.

However, Mrs Marangakis did not return to work and was sacked on 16 July for non-attendance.

She then took her case to an Employment Tribunal claiming unfair dismissal dating back to the original 24 January sacking.

What did the courts decide?

The Employment Tribunal dismissed Mrs Marangakis’ claim as did the Employment Appeal Tribunal (EAT).

“If a person appeals against a dismissal, succeeds in the appeal and is reinstated, the original dismissal ‘disappears’, with the consequence that it cannot then found a claim of unfair dismissal,” said EAT Judge Tayler.

Although Mrs Marangakis said she no longer desired her job back and wanted an apology and compensation instead, this didn’t amount to formally withdrawing her appeal.

As her appeal had been successful – something many employees would have welcomed – the original dismissal disappeared and thus the chance to rely on it for a claim of unfair dismissal.

Judge Tayler added: “An employee who has been dismissed for gross misconduct might well wish to establish in an appeal that they were not guilty of gross misconduct because this will make it easier to find a new job and/or obtain back pay even though they will resign after being reinstated.”

Mrs Marangakis could simply have said “I withdraw my appeal’ and no ‘excessive level of formality was needed’, said the tribunal.

What does this disappearing dismissal case mean for employees?

As the EAT noted in Mrs Marangakis’ case, it doesn’t follow that a person who doesn’t want to come back to work, doesn’t want to pursue an appeal. This might be because they want to:

• Resign following reinstatement and then pursue a claim for constructive dismissal;
• Clear their name via the appeal process to make it easier to get a new job or back pay.

The baseline position is that if an employee successfully appeals against dismissal, they will be treated as never having been dismissed. If they want to withdraw their appeal it must be clearly stated and this is where Mrs Marangakis’ fell down.

What does this disappearing dismissal case mean for employers?

If a dismissal is revoked by an appeal, and the employee doesn’t return to work, employers should tread carefully.

This is because it’s important not to do anything that might spark a constructive dismissal claim or give rise to a new unfair dismissal claim.

Get in touch

Partner James Taylor is a specialist Employment Disputes lawyer for both employers and employees. His recent work includes:

• Helping a finance advice company successfully defend allegations of unfair dismissal by a former senior manager;
• Pursuing a claim of constructive dismissal and sex discrimination by a veterinary nurse to a successful four-day hearing with Counsel;
• Obtaining an injunction, and later damages, to stop a former employee breaking restrictive covenants by poaching clients;
• Helping businesses to fairly dismiss employees without facing any claims for unfair dismissal or discrimination;
• Advising on several hundred Settlement/Compromise agreements (Read how we can help)
• Helping a director/business owner turn a £30,000 employment claim into a £300,000 business exit agreement at mediation.

Email James: james.taylor@wards.uk.com

Phone James: 01454 204880