In Marangakis v Iceland Foods Limited [2022] EAT 161, the EAT considered whether an original dismissal still vanishes where an employee expressly no longer seeks reinstatement but continues with their appeal.
Ms Marangakis was dismissed for alleged gross misconduct in January 2019 and appealed, indicating that she wished to be reinstated. Subsequently, she changed her mind due to her belief that mutual trust had broken down and stated at the appeal hearing: “I don’t want to work for Iceland, I want apologies and compensation”. The appeal was successful, and Ms Marangakis was reinstated, but did not in fact return to work. She was then dismissed in July 2019 for failure to attend work. She brought an unfair dismissal claim in relation to the January 2019 dismissal. An employment tribunal considered that it had no jurisdiction to hear the claim, as the January 2019 dismissal had “vanished” on Ms Marangakis’ reinstatement. She appealed against the decision.
The EAT (HHJ Tayler, sitting alone) rejected the appeal. It was common ground that if an appeal against dismissal is successful, the parties are bound to treat the dismissal as not having occurred, irrespective of the employee’s subjective wishes. Only if an appeal is withdrawn can this outcome be avoided. The determination of whether there is a withdrawal from an appeal is a matter of objectively construing the employee’s words. It does not necessarily follow from a statement that a person does not wish to return to work that they do not want to pursue an appeal. In reaching this decision, the EAT took into account, among other things, that Ms Marangakis could have unequivocally stated that she was withdrawing her appeal and ceased to participate in the appeal. In the circumstances, the tribunal was entitled to conclude that, viewed objectively, Ms Marangakis did not indicate a decision to withdraw from the appeal.
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