What is a vanishing dismissal?
If an employee appeals against a constructive dismissal case and is reinstated to their role, then the original dismissal can disappear or ‘vanish.’ If the employee is then accused of any other misconduct in the workplace, they cannot use the vanished dismissal to put in a claim for unfair dismissal. Vanishing dismissal is an important issue for employees and employers to be aware of.
How a vanishing dismissal occurs
If an employee appeals against the decision, they are confirming that they want the employer to admit they had made the incorrect decision and that they wish to return to their job. If the appeal is successful, the employers will usually reinstate the employee to their role and backdate any pay to their dismissal date. The employee can also make it clear at the appeal stage that they are looking for another outcome, such as compensation or an apology. This successful appeal then means that the dismissal has vanished from the employee’s record.
An example case
In the recent case of Ms M vs Iceland Foods Limited, Ms M was dismissed for gross misconduct. She decided to appeal against the decision in order to return to her role. Whilst this process was ongoing, further evidence was discovered by Ms M and she decided that she did not want to return to her job and that she would rather pursue compensation and an apology. Her appeal was successful, her position was reinstated and she was paid any back pay she was due. Ms M then decided she would not return to work so was dismissed from her position.
Ms M began a second appeal as she claimed her original dismissal for gross misconduct was unfair. Her case was taken to an employment tribunal which confirmed that as Iceland had reinstated Ms M to her position after the first appeal, then the accusation of gross misconduct had vanished as a result of Ms M winning the case. Ms M argued at the employment tribunal that she had effectively withdrawn her appeal as she had told Iceland she no longer wanted to work for them so her dismissal could not have just vanished.
The employment tribunal disagreed with her assertion and stated that she did not make it clear she was withdrawing her appeal and she had also persisted with the appeals process on the advice of ACAS. Therefore, the employment tribunal decided that as her appeal against Iceland had been successful originally, the dismissal had vanished and she could no longer use it to put in a claim for unfair dismissal.
If you need advice for a case of unfair dismissal, firms such as Employment Law Friend constructive dismissal claim can help.
Points to Consider
In conclusion, if an employee appeals against a claim of gross misconduct or unfair dismissal and that appeal is successful, then the dismissal vanishes from their record and cannot be used in further cases. If an employee such as Ms M had decided to withdraw from the appeal process, then this needs to be stated clearly, as it can affect future claims and employment opportunities.
