K Marangakis v Iceland Foods Limited

Where an employee pursues a contractual dismissal appeal to a successful conclusion, the parties are bound to treat the employment as continuing throughout. The original dismissal therefore has no legal effect. The employee’s subjective reasons for appealing, including a wish not to return to work, do not alter that consequence.

An appeal may be withdrawn before its determination, but withdrawal depends on the objective meaning of the employee’s words and conduct. A statement that the employee does not wish to return to work is not, without more, a withdrawal of the appeal. Continued participation in the appeal process may confirm that no withdrawal occurred.

The claimant was summarily dismissed for alleged gross misconduct. She appealed and initially sought reinstatement. Before the reconvened appeal hearing, she said that she no longer wanted reinstatement and sought compensation. She nevertheless attended and participated in the reconvened hearing.

The respondent allowed the appeal, substituted a final written warning, and reinstated the claimant with continuity and back pay. The claimant did not return to work. She brought an unfair-dismissal claim concerning only the original dismissal.

The Employment Tribunal held that she had not withdrawn her appeal. It held that the successful appeal caused the original dismissal to vanish in law and that it therefore lacked jurisdiction to determine that unfair-dismissal claim. The central issue on appeal was whether the claimant’s words objectively withdrew her appeal before it was determined.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant had not withdrawn her appeal against dismissal. The successful appeal therefore reinstated her employment and the original dismissal could not found her unfair-dismissal claim.
2. Following Folkestone Nursing Home Ltd v Patel, a contractual right of appeal against dismissal means, objectively construed, that an appeal pursued successfully requires both parties to treat the employment relationship as having continued. The employee’s subjective reasons for appealing do not change that contractual consequence. Subject to express terms providing otherwise, reinstatement includes continuity and back pay.
3. An employee may withdraw an appeal before its conclusion. Whether this occurred is determined by an objective construction of the words used and the surrounding conduct. No excessive formality is required, but a clear communication of withdrawal is needed.
4. The claimant’s statements that she did not want to return to work and wanted compensation expressed her preferred outcome. They did not objectively state that she was withdrawing the appeal. Her continued participation in the reconvened appeal hearing, and the Tribunal’s accepted finding that she had not withdrawn it, supported that conclusion.
5. A person may rationally pursue an appeal despite not wishing to work again for the employer, for example to challenge a gross-misconduct finding, obtain back pay, or then resign after reinstatement. The fact that an appeal process cannot itself deliver every desired remedy does not alter its legal consequences.
6. The Tribunal was not strictly bound by Folkestone on the distinct question of withdrawal, since that case did not concern a withdrawn appeal. Its conclusion was nevertheless correct. No remittal was required.

• Employment Appeal Tribunal: Appeal dismissed: [2022] EAT 161.
• Employment Tribunal, Watford: Held that the claimant had not withdrawn her disciplinary appeal. Its success reinstated the employment relationship and removed the legal effect of the original dismissal, so the Tribunal had no jurisdiction to determine the resulting unfair-dismissal claim.