The claimant was employed as a part-time Sales Assistant from September 2013.  The claimant was initially dismissed for alleged gross misconduct in January 2019.   The main issue of the case was the effect of an internal appeal.

The respondent, in its disciplinary policy, states:

‘Colleagues have the right to appeal at each stage within five working days of receipt of the letter confirming the disciplinary sanction…The decision of the appeal hearing is final.

The claimant emailed in early February 2019 stating that she wished to be reinstated back into her position before the alleged incident took place.  The respondent took this to be an appeal of the decision originally made.  As a result, an appeal hearing was convened where the claimant stated that she did not want ‘sacked’ on her record.   Further investigations had to be carried out through the appeal process. During the appeal process the respondent emailed to say that she believed that the mutual trust between herself and the employer had broken down and as a result she was seeking compensation rather than reinstatement into her role.   This position was retained by the claimant and she stated this at a reconvened hearing in March 2019.   Mr Keeble, overseeing the appeal, stated that he could not provide the remedies she was seeking (an apology, compensation and not to work for the respondent any longer).  In April 2019, Mr Keeble wrote to the claimant informing her that her appeal was successful.  She was to be reinstated with continuity of service and backpay. A final written warning was given instead.

The claimant never returned to work.  The backpay was provided to the claimant by way of bank transfer.  The claimant sought to give this back to the respondent by cheque but the payment was refused.  The respondent then dismissed the claimant in July 2019 for her failure to attend work. The basis of the claimant’s claim was the ‘dismissal’ in January 2019 rather than that in July 2019.

The question for the Tribunal was outlined as follows:

‘In circumstances where the employee expressly no longer seeks reinstatement, but nonetheless continues with her appeal, does the original dismissal still vanish if the employer in fact reinstates the employee?’

The Tribunal, at first instance, answered it in the affirmative; the dismissal does vanish.  The EAT agreed with this citing that it was bound by the Court of Appeal in Patel where the employee takes the risk of continuing with the appeal where they are no longer wishing to be reinstated. The EAT further held that even where the claimant expressly stated that she no longer wished to work for the respondent that did not have the effect of withdrawing her appeal.  As a result, there was no dismissal in January 2019 and the claimant’s claim fails.

Practical Lessons:

A recent NI decision (Wahab v Four Seasons) covered the issue of what happens to the dismissal claim when the internal appeal is allowed.   Both of the cases have answered it in the same way; that the dismissal vanishes.  This case is more pronounced considering that the claimant reiterated at a number of points that she no longer wished to work for Iceland and she just wanted compensation.   Despite those expressions, an appeal withdrawal is required to allow the dismissal to stand.
https://www.gov.uk/employment-appeal-tribunal-decisions/mrs-k-marangakis-v-iceland-foods-ltd-2022-eat-161