In my last post reference was made to ACAS’ advice in its Disciplinary and Grievance Code of Practice (at paragraph 26) that “Where an employee feels that disciplinary action taken against them is wrong or unjust, they should appeal against the decision.” Similar advice is given about appealing grievance outcomes which the employee thinks are unfair (paragraph 41).
In that post it was stated that that ACAS’ advice is generally good advice, and indeed it is. If you have received a first written warning and you think the decision is unfair, you should appeal. If you have received a second or final written warning and you think the decision is unfair you should also appeal. I don’t think there is anything controversial in that advice. Trying to resolve disputes through established formal dispute process is a good thing to be welcomed.
But what about circumstances where the disciplinary outcome is dismissal? The ACAS Code of Practice does not differentiate on its advice to employees. The clear emphasis of paragraph 26 of the Code is that an employee who is unhappy with a disciplinary outcome, whether that resulted in a sanction of dismissal or a less serious sanction “should” appeal.
In my opinion if you have been dismissed, you think it has been an unfair decision, and you would like to be reinstated to the role (you want the employer to overturn the dismissal and give you the job back) then the ACAS advice remains good advice. If you succeed in the appeal, the outcome is you get your job back, if the appeal is unsuccessful then you can still (time limits permitting) go on to make an employment tribunal complaint of unfair dismissal.
The reason why you may appeal even if you don’t want your job back.
I have recently advised a person who was dismissed for gross misconduct, which was entirely contested (and on review the evidence was extremely shaky) – who, after their experience of how the employer treated them, were adamant they did not want their job back, but they still appealed because they disagreed with the decision and wanted to challenge the evidence relied upon and, in their eyes, restore their reputation. I completely understand that impulse and, if you are definite that you will not return from work, even if your appeal is successful but you will not pursue an unfair dismissal claim anyway, then that may still be a reasonable course of action.
If, however, you do not want your job back but do want to challenge the dismissal the conventional rationale given for why you should nonetheless appeal is simply that is what the ACAS Code recommends that this should be done and that a failure of an employee to follow ACAS advice could result in up to a 25% reduction in any compensation awarded in an unfair dismissal complaint. When put like that then this seems reasonable advice.
It is indeed the case that section 207A(3) of the Trade Union and Labour Relations (Consolidated) Act 1992 does say that in any case in which an ACAS Code of Practice is relevant, where an employee has not followed that advice, and the failure to follow advice was unreasonable then the employment tribunal may (not must) reduce the award given by up to 25%. In an unfair dismissal context, a 25% reduction could be very costly so, viewed that way, an employer’s decision to still appeal the warning is understandable.
How following ACAS advice could cost you much more that a 25% reduction in award
Nonetheless, when applied to a dismissed employee who does not want to be reinstated to their former role and wants to still pursue an unfair dismissal complaint following ACAS advice can be catastrophic, as the recent decision of the Employment Appeal Tribunal in Marangakis v Iceland Foods Ltd (2022) shows.
The key facts in Marangakis can be stated briefly. The claimant was dismissed on 24 January 2019. On 7 February 2019 she appealed against the dismissal and as part of that appeal asked to be reinstated (get her job back). On 22 March 2019 an appeal hearing took place during which the claimant said she did not want a dismissal on her record. The appeal hearing concluded and was adjourned so that further investigations could take place. Three days later the claimant emailed the former employer and said the appeal manager “asked at the appeal hearing if my desired outcome was the same as per my original appeal letter, the answer to that is quite simply NO. I believe that the mutual trust, which forms part of the contract between us has been broken”. The claimant wanted an apology and compensation. On 27 March 2019 the appeal meeting reconvened, and the claimant stated the same desire in the meeting. Later, on 10 April 2019, the employer allowed her appeal and substituted the dismissal for a final written warning – the claimant was asked to return to work. The claimant did not do so and on 16 July 2019 the employer again dismissed the claimant, this time because she was not attending work.
The claimant submitted an unfair dismissal claim about the January 2019 dismissal, but not the July 2019 dismissal. At the employment Tribunal hearing the judgment recorded that in not formally withdrawing her appeal she was relying on ACAS advise she had sought because “Acas had advised her to see her appeal through, and that she followed that advice. The claimant was asked by the tribunal whether or not she withdrew her appeal at this stage and she unequivocally confirmed that she had not.”
Although when the EAT consider the issue it is careful to just say the claimant was not expressly withdrawing the appeal so as to act “in accordance with what she considered to be the advice of Acas” (paragraph 23(4)). Taking a step back, it seems entirely conceivable that this is exactly what happened since, as we have seen, that advice given personally is consistent with the advice ACAS have given in writing in the statutory code.
So, what went wrong? We have discussed the concept of the vanishing dismissal before on this site. This holds that if an appeal against dismissal is made by a dismissed employee and that appeal is upheld then the contract of employment is revived, and the dismissal vanishes. And, if a dismissal ‘vanishes’ then there is no dismissal upon which to base an unfair dismissal complaint. That is exactly what happened to the claimant in Marangakis. She appealed, changed her mind about wanting reinstatement and told the employer this but nevertheless did not withdraw the appeal, meaning when the appeal was upheld, she lost her chance to claim unfair dismissal.
The principle, as covered in that previous article, was established by the Court of Appeal in Roberts v West Coast Trains (2004). However, the earlier decision of the EAT in that same case (which the Court of Appeal endorsed) accurately summarised the dilemma the claimant in Marangakis faced (it is quoted in the judgment):
Plainly, if the employee, having lodged the appeal, withdraws from it, then the employer cannot seek to determine that appeal. In those circumstances, the employee can rely upon the original decision to dismiss. But, in our judgment, if the employee chooses to keep the appeal alive, then he takes the risk that if he is subsequently reinstated in employment, his unfair dismissal claim will be defeated.Roberts v West Coast Trains Ltd (2003) – EAT
The claimant in Marangakis did what many would think is a sensible thing: followed the advice that it seems was given to her by ACAS advisers to see the appeal process through to the end even though she had decided she did not want her job back. For the very reasons identified as long ago as 2003 the claimant in following ACAS advice was “taking a risk,” whether she knew it or not, and by doing so she has lost the right to challenge her employer’s dismissal. Even in a case like this, where the intentions not to return were clearly communicate in advance more is needed and what the claimant should have done is to expressly withdraw her appeal – but that would be contrary to the advice she had received.
The sorry experience means the reasonableness of following the advice at paragraph 26 of the ACAS code of Practice is very much in doubt. It is not always advisable for an employee who thinks their dismissal was unfair to appeal. To be accurate, it seems to me the ACAS advice needs to be rewritten to something like this:
Where an employee feels that disciplinary action short of dismissal taken against them is wrong or unjust, they should appeal against the decision.
Where an employee feels that a disciplinary dismissal taken against them is wrong or unjust, they should appeal against the decision if they want their job back. Appealing when they do not want their job back may compromise the employee’s opportunity to challenge the fairness of the dismissal in an employment tribunal.What Paragraph 26 of the ACAS Code of Practice should say but doesn’t
However, while ACAS continue to promote the same in respect to appeals against dismissals, there will remain the risk that employers will argue that the failure to appeal means any compensation the dismissed employee receives should be reduced by up to 25%. The answer to that risk is that a reduction of award for failing to adhere to the guidance should only be ordered if “that failure was unreasonable.” (Section 207A(3)(c) of the Trade Union and Labour Relations (Consolidated) Act 1992).
The advice for claimant’s and reps is therefore to highlight the risk that appealing poses to the employee’s right to exercise a statutory right and, perhaps, highlight the decision in Marangakis – I doubt, faced with such an explanation, there will be many employment judges who would still reduce an award but even if they do 75% of an award is better than 0%!
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