We know the expression ‘careful what you wish for’ and in the world of Employment law this warning about unintended consequences has particular application to appeals. If someone is dismissed and considers their dismissal is unfair, or simply does want a dismissal to blot their employment record, the natural instinct is to appeal.
In the majority of cases, making an appeal is the right thing to do. There are two good reasons for this but the second one is not often considered. The first reason is because if a person does not appeal a dismissal and then goes on to make a successful claim in the Employment Tribunal, they can expect to get whacked with a reduction of up to one –quarter of their compensation. This could be a few thousand pounds in some cases. So, a ‘few thousand reasons ’to appeal’ you might say.
The not so well-known reason to appeal is because the appeal process is part of the dismissal. This means if an employer messes up an appeal, even if the initial decision to dismiss may have been found to be fair, a Tribunal may find that the overall dismissal, including what happens in the appeal, is unfair and an employee could win at a Tribunal. Give them enough rope, as they say.
This article is about what happens when a dismissal appeal succeeds. It is like magic. The dismissal disappears! If a person successfully appeals a dismissal, it is as if the dismissal never happened. Wouldn’t it be good if we could use that trick for other things?
This means a person who successfully appeals a dismissal must be paid, including any pay rise, and given any other contractual benefits for the period between the dismissal and the appeal.
It also means that the employee is expected to return to work.
Sometimes an employee, wants to clear their name by an appeal, but does not want to return to the job. Maybe the whole experience has left them cheesed- off. Or perhaps, they have lined-up another job.
In a recent case, an employee who successfully appealed her dismissal, argued that because she had said she did not want to be reinstated, she should still be able to say she was ‘dismissed’ and be allowed to claim for unfair dismissal. The Tribunal disagreed and confirmed that once her appeal succeeded, her dismissal was wiped and so there was no ‘dismissal’ on which to base an unfair dismissal claim. The appeal court went further and said she should have withdrawn her appeal before the appeal process finished, if she had wanted to press a claim for unfair dismissal, and she had not done so.
Not being able to say you have been dismissed can make a big difference, especially if an uncapped claim could have been made, such as for a discriminatory dismissal. In those cases, even with a 25% reduction in compensation for not appealing, or seeing through an appeal,, there could still be a significant amount of compensation at stake.