Employees: be wary of the ‘vanishing dismissal’22nd November 2022 • 4 min read • Chris McAvoy
What is a vanishing dismissal?
Many people, including some employment lawyers, are unfamiliar with the concept of a ‘vanishing dismissal’. This can arise in situations where an employee is dismissed by their employer and later reinstated following a successful appeal. The dismissal upon which the employee would rely, in order to bring their dismissal related claim (e.g. unfair dismissal), is treated as never having occurred, hence is ‘vanishing’.
It’s a tricky area for employment lawyers to advise on because, often, a dismissed employee does not wish to be reinstated, they simply wish to be compensated. Therefore, when advising such employees about whether to appeal against their dismissal, employment lawyers have to think more tactically. Careful thought needs to be given to the downsides of not appealing vs. the consequences of reinstatement.
The recent case of Marangakis v Iceland Foods Ltd.
Marangakis was dismissed for gross misconduct. She appealed and indicated she wished to be reinstated. However, she later said: “I don’t want to work for Iceland”. This was because she believed there had been a breakdown in mutual trust. Her appeal was successful and she was reinstated.
As part of determining her claim, the Tribunal held that the dismissal had vanished and therefore her unfair dismissal claim could not proceed. Marangakis appealed to the EAT, arguing that the Tribunal should have accepted that she had withdrawn her appeal by way of her indication that she no longer wished to work for Iceland.
In rejecting her appeal, the EAT concluded that Marangakis had not objectively withdrawn from the appeal and that her words indicating that she did not wish to return to work could not be interpreted as her not wanting to pursue her appeal.
What we do to help employees in this situation
One downside of not appealing is that Tribunals often like to see employees seeking to resolve issues internally. Also, compensation can potentially be reduced if the claim succeeds and the employee did not appeal. However, as the above demonstrates, appealing runs the risk of not being able to proceed with an unfair dismissal claim at all. It begs the question, am I safer to simply not appeal if I am certain I don’t want to be reinstated? The answer to this question is probably ‘yes’.
A middle ground, albeit untested as far as we are aware, is to lodge an appeal against dismissal but make it clear to the former employer, in writing, when lodging the appeal, that:
- should an appeal succeed, reinstatement is not an option;
- the appeal is being pursued for other reasons, e.g. an apology, financial compensation, the removal of the sanction from a disciplinary record etc;
- if the employer is not willing to accept these terms, the appeal should be treated as expressly withdrawn; and
- there is no vanishing dismissal, and their right to pursue a claim for unfair dismissal is preserved.
What should we state in our appeal letter?
If you do decide to adopt this strategy which, as stated above, is not risk-free, some wording that you can use is as follows:
“Finally, I am deeply aggrieved by the Company’s decision in respect of this matter and do not believe that any successful appeal will enable me to return to work for the Company. This process has caused me a profound amount of stress and upset, and I do not feel that returning to my role would be a viable option. Therefore, I ask that, if this appeal is successful, I am not reinstated into my role. Please only invite me to an appeal meeting should you wish to respect these wishes. If you are not prepared to respect these wishes, please treat my appeal as formally withdrawn. I would however like the Company to acknowledge that I have been treated unfairly, to apologise for doing so, to remove the dismissal from my record and to not refer to it at all to any prospective employers. I will also be seeking compensation for unfair dismissal in the Employment Tribunal”.
Please note that cases concerning vanishing dismissals will be fact specific and you should seek specific advice concerning the circumstances of your case.
If my dismissal has ‘vanished’, is it game over?
Not necessarily. To protect your position you may wish to allege, in the alternative to unfair dismissal, constructive unfair dismissal. In doing so it is likely that you will allege that the employer’s handling of the disciplinary matter amounts to a fundamental breach of the implied term of trust and confidence. This will require you to submit a resignation letter soon after the reinstatement is confirmed however specific advice on the contents of that letter ought to be obtained.
If you are:
- an employee seeking advice in relation to a dismissal or dismissal appeal; or
- an employer seeking advice on managing a dismissal or dismissal appeal;
We are trained and experienced in handling all matters of employment law and can provide you with the information you need. We can also provide training on equal opportunities.
Call us on 0800 368 8470 or arrange a chat at www.people.legal/contact for free initial advice.
Please note the information contained in this briefing is intended as a general review of the subject featured and is not a substitute for obtaining.