Caveat appealer!

The case of Marangakis v Iceland Foods 2022] EAT 161 is a salutary reminder to employees that, if they do not want to be reinstated, they should either not appeal against their dismissal however unfair they consider it to be, or formally withdraw it before determination.

In this case the Claimant was dismissed for gross misconduct and appealed because she did not want that to be on record. At the appeal she made clear that the outcome she wanted was an apology and compensation but no longer work for Iceland.

The appeal succeeded and she was reinstated with continuity of service and backpay and given a final written warning. She did not return to work and was eventually dismissed for that failure. She issued a claim in the ET that the original dismissal was unfair.

The ET found that ACAS had advised the Claimant to see the appeal through and she had followed that advice. She confirmed that she had never formally withdrawn the appeal.

The ET followed Folkestone Nursing Home Ltd v Patel [2018] EWCA Civ 1689, [2019] I.C.R which held that, without a formal withdrawal of an appeal, a successful appeal against dismissal meant that the dismissal vanishes and dismissed the claim. The Claimant appealed.

In the EAT it was argued that the Claimant made clear that she did not want to be reinstated but the EAT held that, viewed objectively, the words used did not indicate a decision to withdraw from the appeal so that, when the appeal succeeded, the original dismissal no longer existed.

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Authors

Melvyn Harris

Call 1997

Related areas

Employment

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