The mystery of the ‘vanishing dismissal’
10 November 2022
The Employment Appeal Tribunal (EAT) has considered whether an employee who successfully appealed against her dismissal had still been dismissed for the purposes of bringing a claim for unfair dismissal.
The employee, M, had been summarily dismissed by her employer for gross misconduct. She appealed against the dismissal, asking to be reinstated. She subsequently challenged the employer’s disciplinary process and informed the employer that she no longer wanted to be reinstated and that she considered mutual trust had broken down. After a reconvened appeal hearing, at which she said that she was seeking an apology and compensation, M’s appeal was upheld. She was told that she would be reinstated with full continuity of service and back pay, and she was issued with a final written warning instead.
M did not return to work and was later dismissed for her failure to attend work. She brought an unfair dismissal claim, relying on the original dismissal for gross misconduct. The claim was rejected by the employment tribunal, which found that the original dismissal had ‘vanished’ when her appeal against the dismissal succeeded. The tribunal considered that it was bound by a previous decision of the Court of Appeal (Folkstone Nursing Home Ltd v Patel  EWCA Civ 1689)), which held that an employee can only ‘escape’ the consequences of a successful appeal if he or she withdraws the appeal. Otherwise, the dismissal vanishes upon reinstatement, regardless of the employee’s intentions. M appealed to the EAT.
The EAT has dismissed the appeal, upholding the decision of the employment tribunal. For contractual purposes, when an appeal succeeds the employee is treated as having never been dismissed. The employee’s reasons for bringing the appeal or their preferred outcome are not relevant; reinstatement means that the dismissal effectively no longer happened.
M argued that the tribunal should have treated her appeal as having been withdrawn, since she had informed her employer that she no longer wanted to work for them. The EAT disagreed, finding that in telling her employer that she no longer wanted to be reinstated, M was not objectively and unequivocally withdrawing from the appeal. She could have clearly stated that she was withdrawing her appeal, if that was her intention. The EAT also took into account the fact that she had still taken part in the appeal process.
The Birketts view
The concept of a ‘vanishing dismissal’ is well established but not always well understood by employers and employees. If an appeal against a decision to dismiss is upheld, it will ‘undo’ that decision, meaning that the employee will be treated as though the dismissal has never happened. Their continuity of employment is preserved and they will be entitled to receive full pay for the period between the dismissal and the reengagement.
In this case, the employee could have chosen instead to resign and bring a claim of constructive unfair dismissal, if she was alleging a breach of the implied term of trust and confidence. This may have had a better chance of succeeding.
The tribunal judgment in this case records that Acas had advised the claimant to see the appeal through. An appeal can be an opportunity for the employer to put right any wrongs in the disciplinary process, for example if it has not taken into account pertinent documentary evidence or failed to interview an important witness. The right of appeal is included under the Acas Code of Practice, but an employee’s failure to pursue an appeal does not mean that they are prevented from bringing a claim for unfair dismissal; it may result in a reduction of any compensation awarded.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2022.