A vanishing dismissal occurs where an employee is dismissed but successfully appeals against that dismissal. This is a longstanding employment law concept that has been recently upheld and is a reminder to employers to ensure the existence of an appeals process so as to mitigate the risk of unfair dismissal claims.
Marangakis v. Iceland Foods Limited
Mrs Marangakis, a part-time sales assistant at Iceland, was dismissed for alleged gross misconduct. She appealed to have her job reinstated in accordance with the company’s internal appeal process. Prior to the conclusion of the appeal, Mrs Marangakis informed her employer that she no longer wanted to be reinstated and wanted an apology and financial compensation instead. Despite this, her appeal was successful and the decision was made to reinstate her with back pay. Mrs Marangakis did not return to work and she was later dismissed for her failure to attend work.
Mrs Marangakis alleged that her original dismissal was unfair, but an employment tribunal found that as she continued successfully with the appeal process and had not withdrawn her appeal at any stage, the original dismissal had disappeared. No dismissal, let alone an unfair dismissal, remained to found a claim. Mrs Marangakis appealed to the Employment Appeal Tribunal which dismissed the appeal for the same reason.
The key point is the importance of having the right of appeal within a disciplinary policy. In this case, the main reason for the dismissal vanishing was that there was no unequivocal withdrawal of the internal appeal. This does mean that, if an employee clearly withdraws their appeal, the employer should not assume that reinstating will remove the dismissal and protect them from a claim. Indeed, reinstating in such circumstances could be taken as a recognition of flaws in the original process and so make an unfair dismissal finding more likely.
Employers should also note that, where an employee’s internal appeal is upheld, the employee should be reinstated with full back pay from the date upon which they were first dismissed and should be treated as having continuity of employment.
Finally, if an employee is reinstated and does not return to work, employers should follow an appropriate absence procedure with caution so as not to create a new unfair dismissal.
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