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The remedies available in unfair dismissal cases are more than merely compensation. Claimants can be reinstated to former roles or re-engaged on different terms. In this article, we look at the recent Supreme Court decision in McBride v Scottish Police Authority, where an Employment Tribunal ordered that a claimant who had been subject to unfair dismissal be reinstated to her role but with the same restriction in duties that applied prior to her dismissal.

The facts of the  case

The claimant, Ms McBride, was employed as a fingerprint officer in the Scottish Criminal Records Office from 1984.

She and three of her colleagues were suspended between August 2000 and May 2002, after wrongly identifying a fingerprint from a crime scene as that of a detective constable. The error led to David Asbury’s conviction for murder being quashed. Ms McBride and her colleagues returned to work on restricted duties. The restrictions prevented them from signing reports for the purposes of proceedings and from giving evidence at trial, and were intended to prevent their giving evidence at trial from turning into a trial of the expert.

Following a structural reorganisation, Ms McBride transferred to the newly established Scottish Police Services Authority (SPSA) on 1 April 2007. She wanted to return to full duties. The interim chief executive, given that there were on going disagreements over disputed identification evidence, did not want Ms McBride and her three colleagues to transfer to the SPSA. Instead, he offered redeployment with Strathclyde Police.

On 1 May 2007, Ms McBride was informed that her employment was being terminated because no suitable redeployment opportunity was identified for her. Ms McBride presented a claim for unfair dismissal.

Employment Rights Act 1996

The Employment Rights Act 1996 sets out the following possible remedies where a tribunal finds that an employee has been unfairly dismissed.

  • An order for reinstatement or re-engagement: These are very rare. The claimant has to ask for reinstatement or re-engagement before the tribunal can make an order. The tribunal must first consider reinstatement to the original role and only go on to consider re-engagement in a different role or on different terms if it decides reinstatement is not appropriate. Usually, the employer will have to pay back pay to the employee.
  • A basic award: The basic award is calculated by reference to weekly pay, subject to a statutory cap, length of service and age, much like a statutory redundancy payment. It is not made if an order for reinstatement or re-engagement is made.
  • A compensatory award: This is designed to compensate the claimant for financial loss arising from the dismissal and typically includes lost earnings, loss of benefits and loss of statutory rights to present a claim, among other headings.

Employment Tribunal decision

The Employment Tribunal held that Ms McBride had been subject to unfair dismissal, ordering: “The Claimant shall be reinstated by the Respondent to the position of Fingerprint Officer and treated in all respects as if she had not been dismissed.”

The tribunal concluded that it would be practicable for the SPSA to reinstate Ms McBride to the job she had done on restricted duties for several years. It also found that it was just and equitable for a reinstatement order to be made, because Ms McBride’s conduct had not contributed to her dismissal.

The SPSA appealed.

The EAT held that the tribunal’s reinstatement order had been perverse, given Ms McBride’s continued wish to resume her role without restriction. Ms McBride appealed to the Inner Court of Session but the case was nevertheless remitted to the Employment Tribunal to reconsider the terms of the re-engagement.

Ms McBride appealed to the Supreme Court, arguing that the tribunal had not erred because its order put her in the same contractual relationship as she was in before her dismissal.

Employment contract

The key issue was whether the tribunal had reinstated Ms McBride to employment which was different from the employment she had been dismissed from. The Supreme Court held that it had not done so. The tribunal’s reference to the restricted duties was simply recognition of the existence of the practical limitation on the scope of her work. The Supreme Court’s decision was supported by four reasons:

  • The tribunal was aware of both the terms of Ms McBride’s contract of employment and of the fact that for several years she had been working on restricted duties. That was the status quo to which Ms McBride would have returned, pursuant to a reinstatement order as her employer had to treat her as if she had not been dismissed;
  • The tribunal was aware that Ms McBride wanted to perform the restricted duties but held that the SPSA’s decision that she could not return to those duties was reasonable;
  • The tribunal had rejected the suggestion that Ms McBride continuing in a non-court-going role amounted to alternative employment; and
  • The tribunal’s comment “it being understood that reinstatement would be to a non-court going fingerprint officer role” reflected their understanding of the practical context of reinstatement, rather than changing Ms McBride’s terms and conditions.

This is an interesting decision because the effect was to reinstate the claimant to a role with restrictions that she did not want to apply, working for an employer who had arguably demonstrated that it did not want her back. The case was remitted to the original tribunal to consider how much backpay was due, among other things.

Reinstatement orders are rare. It is nevertheless useful to have this Supreme Court authority on maintenance of the ‘status quo’ when an employee is reinstated to a role. It is, perhaps, worth employers bearing in mind that a finding of unfair dismissal could leave them having to re-employ an employee that they had wanted to dismiss, as well as an order to pay considerable backpay.

For more information about unfair dismissal claims or employment law matters in general, please contact the Employment team.