391: Can a dismissal “vanish” even if an employee doesn’t want to be reinstated?

The recent case of Marangakis v Iceland Foods Ltd has established that a successful appeal against dismissal will result in reinstatement of the employee’s contract of employment from the date of dismissal, with entitlement to back pay and all other benefits. This means that the dismissal will effectively “vanish” and both employee and employer will be bound by the reinstated contract of employment. The employee can only avoid this consequence by withdrawing from the appeal process completely.

Ms Marangakis, a sales assistant for Iceland, was dismissed for alleged gross misconduct in January 2019. She appealed, indicating initially that she wished to be reinstated. However, before learning the outcome of the appeal hearing, she stated that she was seeking an apology and compensation and did not wish to work for Iceland. Ms Marangakis was subsequently informed that her appeal against summary dismissal had been successful and that she was to be reinstated with continuity of service and backpay. A final written warning was substituted for the original decision to dismiss. Ms Marangakis did not return to work and tried to repay her backpay and, inJuly 2019, she was dismissed for failing to attend work.

Ms Marangakis brought an unfair dismissal claim alleging that the January 2019 dismissal was unfair but did not mention the July 2019 dismissal in her claim.

The Employment Tribunal agreed with Iceland that the effect of the successful appeal was that Ms Marangakis was reinstated to her former role. Her original January 2019 dismissal had therefore “vanished” and could no longer be used as the basis for an unfair dismissal claim. Crucially, the Tribunal found that at no stage had Ms Marangakis formally withdrawn her appeal, although she said this was because Acas had advised her not to do so.

Ms Marangakis appealed to the EAT, arguing that her statement had made it clear that she did not want to work for Iceland and demonstrated her intent to withdraw from the appeal process. However, the EAT disagreed; viewed objectively, it held that her words did not indicate that she no longer wished to pursue her appeal. Moreover, it held that she had in fact continued to participate in the appeal process and could not, therefore, avoid the automatic consequence of reinstatement. The Employment Appeal Tribunal (EAT) thereby confirmed that Ms Marangakis could not claim unfair dismissal because a successful appeal had resulted in her reinstatement, even though she did not wish to return to work.

This decision illustrates that, although an employee’s words will be construed objectively, a statement that they do not wish to return to work may not be sufficient to alter the legal effects of a successful appeal. Therefore, a “vanishing dismissal” can only be avoided if the employee formally and unequivocally withdraws from the appeal process and ceases to participate in it.

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