In McBride v Scottish Police Authority [2016] UKSC 27, the Supreme Court considered whether an employment tribunal had erred in ordering reinstatement in an unfair dismissal case where the employee had been on restricted duties before her dismissal.

Facts

Ms McBride was employed as a fingerprint officer for the Scottish Criminal Records Office. During the course of her employment, Ms McBride was suspended from duty for nearly two years (along with three other fingerprint officers) while an investigation was conducted into malicious wrongdoing in respect of fingerprint evidence provided during the course of a murder investigation, which led to the quashing of a murder conviction.

The investigation report subsequently found that there had been no matters of misconduct or capability and recommended that all four experts return to their roles without further disciplinary action. The four experts (including Ms McBride) returned to work on restricted duties with the intention that, after extensive retraining, they would return to full duties.

However, the Crown Office raised concerns that use of any of the four experts in a criminal trial would encourage defence counsel to cross-examine on matters in order to weaken the significance of fingerprint evidence.

There was a subsequent transfer of Ms McBride's employment to the Scottish Police Service's Authority (SPSA) and she was invited the next day to a meeting to consider redeployment. Ms McBride requested that she be reinstated to full duties before considering redeployment. Her employment was terminated later the same day due to her inability to carry out her full duties and to consider redeployment. She brought an employment tribunal (ET) claim for unfair dismissal.

Emplyment tribunal decision

The ET found that Ms McBride had been unfairly dismissed and ordered her reinstatement "to the position of Fingerprint Officer and treated in all respects as if she had not been dismissed". The ET noted that reinstatement would be to a non-court going fingerprint officer role, having found that the SPSA's arguments on this issue were reasonable.

The ET considered whether an order for reinstatement would be practicable for SPSA to comply with and concluded on balance that it would be. It also held that it was just and equitable for a reinstatement order to be made, as Ms McBride had not contributed to her own dismissal.

Employment Appeal Tribunal and Inner House decisions

The Employment Appeal Tribunal (EAT) upheld SPSA's appeal, finding that the reasoning of the ET was perverse. The Inner House subsequently found that the EAT's reasoning did not withstand scrutiny but still found that the decision of the ET was an order to employ Ms McBride on altered terms. Ms McBride appealed.

Supreme Court decision 

The Supreme Court considered whether the ET had erred in law by purporting to reinstate Ms McBride to employment that was different from the employment from which she had been dismissed. It upheld the ET's decision to reinstate Ms McBride to the restricted role she had been doing before her dismissal.

It restated that reinstatement meant restoring the claimant to the same contractual rights and terms and conditions of employment. It confirmed that the ET has no power to order reinstatement on terms that alter the contractual terms of the claimant's employment.

It held that the ET does not have to make a conclusive determination of practicability when considering ordering a reinstatement order, only a provisional determination. If the employer cannot comply with the order then the claimant will be entitled to an award of compensation in the alternative (and potentially an additional award, unless the employer can demonstrate it was not practicable to comply with the order).

Comment

Reinstatement is not often an issue that arises in ET claims, in particular because, once an ex-employee has brought a claim, the employment relationship has normally broken down irrevocably and the claimant has no desire to return to their old role with the same employer. Ordering reinstatement in such circumstances is not conventional, nor practicable.

This case was very fact specific and the duties that Ms McBride had been excluded from doing were only 1.5 of her 12 duties as a fingerprint officer and unlikely to be called upon. On that basis, the Supreme Court also rejected the SPSA's argument that barring Ms McBride from the excluded duties would amount to a fundamental alteration of her job and a subsequent breach of contract.