Vanishing dismissal

[Chilly]

I took my former employer to a tribunal and lost my case because of the so called "vanishing dismissal "
I have requested reconsideration (within time ) along with placing an appeal.
I have represented myself throughout , and am not ashamed to admit I am way out of my depth ...but, carry on I must.
It has taken over two years to get this far .

I took advice from ACAS who told me that a Judge may well frown upon the fact that it was never my intention to appeal my dismissal, because it may show that I was not prepared to give the former employer the chance to put things right.
So I appealed, making it clear I was not seeking reinstatement , merely an apology and compensation.

During the appeal I was repeatedly asked what my preferred outcome was (this is well documented ) never at any point was I seeking reinstatement.
Anyway long story short that is exactly what happened.
Turns out in law that by seeing an appeal through to its conclusion , even if you are not seeking reinstatement you ARE actually seeking reinstatement
Apparently the dismissal vanishes and my contract waa to continue with continuity of service, and things such as pension were restored, and that I was entitled to back pay.

This was all notified to me in writing , but for
6 weeks post decision nothing happened.
nothing, No communication , no back pay , pension and so on.

I continued to pursue my claim with the ET .
The respondent had until a certain date to file its ET3
It did so at the last possible moment.
At the same time I received a letter informing me to turn up for work on XXX @X !!
That same day I was sent a request for "better understanding of particulars" which ended with a threat of legal action if i didnt comply with the request.


Anyway if you have got this far thank you.

As I have said I am forging ahead with my objections which are basically
If i have to accept that in law my dismissal vanished and my employment was restored , the employer should have actioned my return to work with immediate effect ?
Surely he cant have it both ways ??

I hope this make's sense to someone ...

opinions please

[MIKE770]

Ula may be able advise

[ULA]

When you were notified in writing about your reinstatement, as if you had not been dismissed, was there any indication in that letter as to when you would be expected to return to work, or was it left that the company would confirm your return date?

What were your grounds for reconsideration?

What point of law are you arguing your appeal on? What flaws have you identified in the legal reasoning of the original decision since the Employment Appeal Tribunal (EAT) will not normally re-examine issues of fact?

Can you link me to the judgement of your ET hearing please?

[Chilly]

The letter stated " we will be in touch " a week i think they mentioned
They did not action any return to work until after they had filed their Et3 ...Which was a gap of almost 6 weeks
In the ET3 They are claiming that i remained an employee because of the reinstatement
My claim is how could i remain an employee if

1. No action to return to work ( according to their barrister ) it was " with immediate effect" according to my understanding of the law everything should just go back to how it was ...

In a nut shell my former employer played me because they knew (know) that i have documents that clearly show my dismissal was predetermined before the disciplinary hearing had taken place ....their failures of the acas code were shocking.

Sorry

I have messaged you the details of my case
should be easy to find

[ULA]

Thank you for the information.

I have found the case details and will need to take time to review them in detail before responding back to this thread.

[ULA]

I have reviewed the judgement from the Hearing.

It is very clear that the vanishing dismissal finding is supported by previous case outcomes as cited by the judge in the Reserved Judgement. Having found that by reinstating you on appeal there effectively was no dismissal then, however potentially strong your claim for unfair dismissal may have been, as referenced by the Judge, this could not be considered after a finding of vanishing dismissal.

From what you have said your reconsideration is based on the time lag between confirmation of the outcome of the appeal as being reinstatement and the date that you were actually required to return to work. Is that correct?

Had you any evidence to say that if there was a time lag before you started back at work again after reinstatment, that you would not have received all your back pay and to have the benefit of all other terms of your contract of employment through the period from 24 Jan 2019 and into the future.

When were you notified of the outcome of the appeal hearing held on 22 March 2019 by your employer?

The judgement refers to the date of your reinstatement as being 10 April 2019, was this the date given in the letter you refer to towards the end of your post #1 as being the date you were requested to turn up for work?

[Chilly]

Yes , my reconsideration is based very much on the fact that
there was this time lag of almost 6 weeks.
The out come letter says
"your employment will be reinstated with continuous service, and you will receive any back pay owing to you."
In order to discuss and agree arrangements for your return to work I will contact you shortly on " ...
This letter is dated 10th April

I did not receive any further communication from them until 15th May which ,coincidentally is the same date their legal rep must submit their Et3


This letter reiterates the continuous service ..it goes on to say
I will ensure you receive retrospective pay from date of dismissal onwards.. The exact amount will be £X X X (it wasnt ) this will be paid to you on 24th May ( it was , and returned to them by hand delivered cheque the same day)

Letter goes on to say " I have arranged for you to return on 21st May @......"should you not wish to return to X then I must advise you that the alternative is Re-instatement to X with effect from the same day (the with effect from is important in my opinion here)

The appeal hearing (s) were held on 22nd & 27Th March
They adjourned the meeting on the 22nd after I pulled ,let's say a rabbit out of the hat.

My 'return ' to work as notified to HMRC Was 21st May
My pension was opened again on the 21st May
The above clearly states " with effect from"


If you glance again at page 6 of full written I think it sums things up " as soon as he is notified"


What has happened here is that they have played a dangerous game , and have at the 11th hour (the last possible date for et3 response) have tried to back track.

I know that I have no legal argument regarding the vanishing dismissal .....
But I refuse to entertain how they can have it all their own way ..

Thank you very much for taking the time to have a look at this
Happy to answer any questions
chilly

[ULA]

What outcome are you trying to achieve by pursuing an appeal?

What legal mistake are you basing your appeal on?

[Chilly]

The legal mistake has to be the fact that at the time of the respondent filing their ET3 I was in no way whatsoever an employee (as defined in law)
Therefore if I were not an employee (in the legal sense) I still stood as dismissed (unfairly)

What do I want to achieve ?

Well firstly this has never been about money , if it were I could have accepted the almost close to a years salary the respondent had offered via acas conciliation.

I believed in my contract of employment.
I Believed that should certain things ever happen that my employer would be transparent , honest and fair.
They were none of the above.
I would like for organisations such as ACAS and The CAB to level with us ordinary folk..

I went into this with the belief that the fact (and it is fact) my former employer failed to follow the code of practice meant something .......it did not .
That they had breached my data rights mattered. It did not
Even the person named in the documents as being the person I allegedly did X Y Z to is wrong ..they were not even present at the time ! But apparently it does not matter.(These are legal documents are they not ??
The fact that my dismissal was already predetermined before the disciplinary had been heard(I have written proof) ...it does not matter
The fact that my manager got a witness to lie (I have it in writing from the witness that the manager coerced him) but it does not matter..

The law says that I have to accept I was reinstated with immediate effect ....
I am saying this did not happen... ...the Judge in my case (you have read it ) is saying it is of no consequence ...
I need to know why ....