EAT holds that not seeking reinstatement is not withdrawal from an appeal against dismissal
Marangakis v Iceland Foods Limited [2022] EAT 161
The Employment Appeal Tribunal has held that an employee who had appealed against her dismissal for misconduct did not withdraw from that appeal by informing her employer that she had changed her mind and no longer wished to be reinstated to her previous role. When her appeal then succeeded, she was to be treated as having never been dismissed.
The Claimant was employed as a part-time Sales Assistant at the Respondent’s Egham store. Following her dismissal for gross misconduct the Claimant appealed. After receiving documents obtained through a Subject Access Request, the Claimant sent the Respondent an email stating that she no longer pursued the same outcome as she had when first appealing, and that she believed the mutual trust between her and the Respondent had been broken. At a subsequent appeal hearing the Claimant informed the Respondent that she no longer wanted her job back, but was pursuing an apology and compensation. Her appeal against dismissal was allowed and the Claimant was reinstated. The Claimant was subsequently dismissed for failing to attend work.
The Employment Tribunal held that it had no jurisdiction to consider the Claimant’s unfair dismissal complaint based on her original dismissal for misconduct as that dismissal had vanished when the Claimant’s appeal succeeded. The Claimant appealed to the Employment Appeal Tribunal on the basis that her statement that she did not want her job back amounted to a withdrawal from the appeal.
In the first decision considering what is required to withdraw from an appeal against dismissal, the Employment Appeal Tribunal held that it was necessary to consider the objective meaning of the words which the employee contends amounted to a withdrawal. On the facts of the case, the Employment Appeal Tribunal held that the Claimant’s statement that she no longer wished to be reinstated was not sufficient to withdraw from the appeal.
Sam Way, instructed through Advocate, appeared for the Appellant.
A copy of the judgment can be viewed by clicking here.
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