Employee must unequivocally withdraw appeal to prevent automatic reinstatement if appeal succeeds (Marangakis v Iceland Foods Ltd)

A successful appeal against a dismissal will automatically result in reinstatement back into employment unless the employee objectively and unequivocally withdraws their appeal against dismissal prior to the appeal being decided. This remains the case even in circumstances where the employee expressly says to the appeal decision maker that they do not want to return to work. That is because there may be other reasons why they might well wish to pursue and succeed in the appeal, e.g. to establish that they had not committed gross misconduct, to make it easier to find a new job or to obtain back pay, even if they then resign thereafter, according to the Employment Appeal Tribunal (EAT).

Marangakis v Iceland Foods Ltd [2022] EAT 161

What are the practical implications of this case?

This judgment follows the previous well-known judgments of Roberts and Patel in holding that a successful appeal against dismissal results in the automatic reinstatement of the employee (unless there are contractual terms to the contrary). This has the effect that the original dismissal vanishes and can no longer form the basis of a claim for unfair dismissal.

In addition to reiterating that legal point, this judgment also explores the factual issue of whether or not the appeal should have been treated as having been withdrawn in circumstances where the claimant had said that she did not want to return to work for the respondent. His Honour Judge (HHJ) Tayler, relying on comments made in Patel, held that such subjective expressions did not amount to a withdrawal of the appeal as employees may have a variety of reasons to wish to continue with their appeal even if they do not want to return to work. The claimant in this case had not objectively and unequivocally withdrawn her appeal and her actions in continuing to engage with the appeal process, as well as her evidence to the tribunal, were also contrary to it having been withdrawn. As a result, the claimant ended up with back pay for reinstatement rather than being able to seek compensation as part of a claim for unfair dismissal.

Practitioners should be mindful of the effect of a successful appeal when advising an employee and make sure that the employee is aware of the potential consequences. While a successful appeal resulting in reinstatement is relatively rare it does happen on occasion and, without appropriate warning, can take the employee by surprise. This is especially so where the employee had been complying with the appeal process just so that they could say that they had fully complied with the Acas Code on Disciplinary and Grievance Procedures to avoid any reduction in compensation in the claim they planned to bring in the employment tribunal. If part-way through an appeal process the employee wishes to ensure that they avoid the possibility of being reinstated they need to withdraw their appeal and do so in clear and unequivocal language, eg by saying ‘I withdraw my appeal’ as this judgment indicated that saying something less literal, eg that they do not want to return to work, will not be assumed to have the same legal effect.

Court details

• Court: Employment Appeal Tribunal
• Judge: His Honour Judge James Tayler
• Date: 2 November 2022

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