The “vanishing dismissal” is a curious anomaly which was a key issue for one of our clients recently.
The “vanishing dismissal” can prove fatal for the uninitiated employee who wishes to pursue an unfair dismissal claim and a lifeline for an employer who has made a hash of the dismissal process, or genuinely wishes to reverse a bad decision.
Take for instance where an employer reinstates an employee who was dismissed for gross misconduct in patently unfair circumstances. Or where an employee is unfairly dismissed on the grounds of capability but is reinstated to a more junior position on appeal.
One might be tempted to think that because the unfair dismissal amounts to a fundamental breach of contract that the employee would have the luxury of choice following a successful appeal regarding their return to the employer or to pursue a claim of unfair dismissal. Not so!
The general principle behind a “vanishing dismissal” is that a successful appeal negates the dismissal decision and the old contract of employment continues automatically. By reinstating the employee, the dismissal disappears as though it never took place and so does an employee’s right to pursue a claim of unfair dismissal in the Employment Tribunal.
The employee cannot choose whether they want their employment to continue or not, even where they have made it clear in their appeal that they do not wish to return to work but are seeking compensation for example.
But like every legal principle there are exceptions to the rule which are examined below.
The law
The circumstances which amount to a dismissal in Section 95 of the Employment Rights Act (ERA 1996) include where the employee’s contract of employment is terminated by the employer with or without notice or where the employee terminates the contract by resigning it in circumstances where they are entitled to do so by reason of the employer’s conduct (constructive dismissal).
The leading case on “vanishing dismissals” is Roberts v West Coast Trains (2004). Mr Roberts submitted an unfair dismissal claim to the Employment Tribunal after he was dismissed but before he was reinstated following his appeal. He was given a lesser sanction to which he objected.
The court ruled that there was no dismissal because he was reinstated. Reinstatement took effect retrospectively from the date of his dismissal upon his successful appeal. It did not matter that at the time of his claim, he had not been reinstated. The employee could not choose whether to accept reinstatement once the dismissal was overturned.
In Patel V Folkestone Nursing Home Ltd (2018), the Court of Appeal held that it was implicit in a contractual right of appeal that the effect of a successful appeal is that both the employer and the employee must treat the employment as continuing. The successful appeal did not give the employee the option of deciding whether he wanted to return to work. However, in that case, the employer had failed to address serious allegations against the employee even though he was reinstated and the higher court raised the possibility that Mr Patel could have been constructively dismissed
In Marangakis v Iceland Foods Ltd (2022), the Employment Appeal Tribunal held that automatic reinstatement could only be avoided where an employee unequivocally withdrew their appeal before a decision was made. An individual will have left it too late to inform their employer that they do not wish to return to work following a successful appeal as they will have already been reinstated by that point.
In the above case, Mrs Marangakis appealed against her dismissal for gross misconduct and initially said she wished to be reinstated. However, during the appeal process she changed her mind and instead of reinstatement, wanted an apology and compensation.
Mrs Marangakis’ appeal was upheld and she was reinstated and issued with a final written warning instead. She did not return to work and she was dismissed a few months later for her failure to do so. The Employment Tribunal dismissed Mrs Marangakis’ claim for unfair dismissal in respect of the first dismissal on the basis that she had been reinstated and there was no dismissal on which to base her claim.
The Employment Appeal Tribunal agreed that her dismissal had ‘vanished’, leaving her without a claim for unfair dismissal. The court found that whilst Mrs Marangakis’ stated she wanted to withdraw her appeal and did not want to work at Iceland, she had continued with the appeal process. A withdrawal had to be clear and unequivocal and interpreted from an objective view point.
Although the cases have to date dealt with a contractual right of appeal, the courts have stated that the position is most likely the same for non-contractual rights of appeal e.g. those set out in a non-contractual Staff Handbook. There has not been a definitive case on this point as yet.
A vanishing dismissal is also likely to not take effect where there are clear contractual terms which state that reinstatement is not automatic upon a successful or partially successful appeal outcome or where alternative arrangements have been agreed with the employee.
Tips For Employers
- Review the right of appeal in your contract of employment and in non contractual documents including staff handbooks. Remember it is implicit that a successful appeal against dismissal will lead to reinstatement to their original job. Carefully consider including other contractual sanctions together with reengagement which may include demotion to a more junior role, reduced salary, and additional training.
- Reinstate employees to the same job with full back pay from the date on which they were first dismissed and ensure that their continuity of employment is preserved unless other contractual terms are relevant.
- It is not unusual for an appeal to contain a complaint or grievance. Ensure that all issues are addressed which includes any complaints made in the appeal so as to not to give rise to a potential claim for constructive dismissal or other claims.
- Consider tactically asking an employee whether they wish to be reinstated. An employer may not to want to raise the issue particularly where it is aware the dismissal process is flawed and could give rise to an unfair dismissal claim.
- Where an employee states that he or she does not wish to return to work or be reinstated, consider asking the employee whether he or she wishes to withdraw their appeal, and if so, to put it in writing.
- Manage the employee’s return to work carefully particularly as the employee is likely to feel disgruntled and unhappy. Badly managed returns may lead to future claims including constructive unfair dismissal.
- Each case will turn on its own facts and therefore you may need expert guidance.
The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.
© Miller Rosenfalck LLP, September 2025
