Reinstatement orders in unfair dismissal cases

Of interest (and concern) to employers is recent Supreme Court judgement in the case of ‘McBride v Scottish Police Authority’, which has clarified the application and practicalities of a reinstatement order in unfair dismissal cases.

Background

Fiona McBride (“FM”) was one of four fingerprint specialists who attended a murder scene in 1997. Detective constable Shirley McKie (“SM”) was accused of leaving her fingerprint at the murder scene which she denied and indeed gave evidence to say that she had never attended the locus. This subsequently led to SM being tried and ultimately acquitted of perjury (on the basis that the fingerprint evidence was deemed unreliable). This verdict generated widespread criticism of the fingerprint services in Scotland and led to several investigations.

SM and her colleagues were suspended in 2000 but returned to work two years later, owing to the findings of an investigation into their conduct; which found in their favour. Upon their return to work, their roles were restricted (to exclude signing identifications prepared by other officers and giving evidence in court). In 2007, the fingerprint service was incorporated into the Scottish Police Services Authority (“SPSA”). FM and her colleagues were transferred to the SPSA, however she was later dismissed, allegedly because (i) she was unable to carry out the full range of her duties; and (ii) the new organisation could not provide her with suitable redeployment prospects. FM subsequently pursued a claim for unfair dismissal in the Employment Tribunal.

Judgements of Lower Courts

At tribunal, FM was successful in her claim for unfair dismissal and a reinstatement order was made. It was ordered that she should be treated “in all respects as if she had not been dismissed” and it was recognised that “reinstatement would be to a non court going fingerprint officer role”.

The SPSA appealed this decision to the Employment Appeal Tribunal (“EAT”), which revoked the tribunal’s judgement on remedy and remitted the case to a fresh tribunal to consider compensation. The EAT held found that there had been a “significant measure of sympathy towards the claimant” which justified the case being heard by a new tribunal.

The Inner House of the Court of Session then rejected the EAT’s conclusion that the ET had acted perversely and that any implication that the tribunal may have been partial did not withstand scrutiny. They did, however, find that the tribunal had erred in law on the basis that the tribunal had effectively ordered that FM be employed on altered contractual terms.

Judgement of the Supreme Court

The question for determination by the Supreme Court, following an appeal by FM, was whether the tribunal had erred in law by purporting to reinstate FM to employment which was different to that from which she had been dismissed.

The Supreme Court allowed FM’s appeal, noting that “it is the contractual rights, the terms and conditions of the employment, which must be reinstated and the rights and privileges (such as seniority and pension rights) which must be restored to the employee under a reinstatement order.” It was accepted by the Supreme Court that the tribunal had not, in making its order, sought to impose any contractual limitation on FM by removing the excluded duties from the job description and that they had instead simply recognised a practical limitation on the scope of work caused by circumstances beyond the control of FM and her employer.

It was recognised that FM had not carried out the excluded duties for a number of years prior to her dismissal and as such, that was the status quo to which she would have returned. It was further accepted that continuing to work in a non court going role was not alternative employment.

Practical Implications

This case serves as a stark reminder that the courts will, in certain circumstances, allow an employee to return to their previous role notwithstanding a number of years of litigation. Employers should also be aware of the financial implications of a successful claim for a reinstatement order in unfair dismissal cases. Although rare (and in this case the outcome was exceptional), reinstatement orders are costly. As is the case for FM, an employee will be entitled to compensation for their loss of income – which can be substantial in cases such as this. The logistical implications of having to reinstate an employee (in this case FM is set to return to work after nine years of absence) are also potentially significant in terms of opportunities and training.

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