Happy New Year  and welcome to your weekly case law update. For those of you who remember  December last year,  our final update of 2022 covered a look at the industrial strikes and also a forecast for 2023 together with a tentative feeler for seminar interest.

This week we are looking at reinstatement at appeal and unfair dismissal. Typically if an employee is successful at appeal then there is no dismissal. If there is no dismissal the dismissal cannot be unfair. If reinstated the employee’s continuous service would resume and they would be entitled to back pay for the period they were dismissed. However, the manner of the reinstatement can allow the employee to subsequently resign and claim constructive dismissal. For example in the case of Thomson v Barnet Primary Care Trust over zealous reinstatement terms amounted to a breach of contract.

Therefore the question this week is:

If the Claimant requests not to be reinstated during an appeal process can they still be unfairly dismissed if they are reinstated?

Ms Marangakis, the Claimant, was employed by Iceland Foods, the Respondent, as a sales adviser. The Claimant was employed from 2013 until dismissal for gross misconduct in 2019. Upon being dismissed the Claimant appealed and requested reinstatement on her appeal letter.

However, during the appeal process she wrote to the Respondent’s appeal officer requesting compensation and an apology instead of reinstatement. The Claimant believed that the dismissal amount to a breach of trust and confidence that breached her contract. The Respondent allowed the Claimant’s appeal, reinstated her and awarded back pay for the months between dismissal and reinstatement.

The Claimant tried to return the backpay via cheque which was refused and did not return to work. The Claimant was subsequently dismissed again for failing to return to work. The Claimant commenced an unfair dismissal claim, the claim focused on the original dismissal and was specifically not bringing a claim for constructive dismissal.

The Employment Tribunal dismissed the claim. It held the original dismissal had disappeared as a result of the appeal process and the Claimant had claimed constructive dismissal or unfair dismissal for the subsequent dismissal. The Claimant appealed citing that the dismissal could not have disappeared as she had withdrawn from the appeal. The Employment Appeal Tribunal rejected the appeal, it held that the Claimant had not withdrawn from the appeal but requested compensation instead of reinstatement. The EAT also found that the Claimant had expressly not withdrawn her appeal due to advice she received from ACAS.

The Takeaway Point

No, a Claimant who requests compensation instead of reinstatement cannot claim unfair dismissal if their appeal does result in reinstatement. Had the Claimant claimed unfair dismissal for the second dismissal, claimed constructive dismissal, or, formally withdrawn from the appeal process the outcome could have been different but simply asking for money instead of reinstatement does not make a dismissal suddenly reappear.

This case highlights the importance of reinstatement at appeal. Many employees and employers dismiss appeal processes as an exercise in futility. However, they can be used to both rectify procedural issues in the original dismissal but also be used as a bluff tactic. The employee usually does not wish to return to work and, even though the employer probably does not want them to return either, can use reinstatement as a means to mitigate the risk of an unfair dismissal claim as most employees do not want to go back. This is a particularly notable tactic if the employer becomes aware of the employee obtaining new employment during the appeal process.