Labour & European Law Review Weekly Issue 480 27 July 2016
When making an order for reinstatement, the Supreme Court held in McBride v Scottish Police Authority that tribunals can take on board practical limitations that already apply to the scope of the dismissed employee’s work. That meant, in this case, that the tribunal could make an order that recognized long-standing restrictions to the claimant’s duties.
Ms McBride, a fingerprint expert at the Scottish Criminal Records Office (SCRO), identified a fingerprint at a murder scene in the late 1990s as belonging to a police officer. Along with three other experts, she gave evidence at the officer’s trial. After the officer was acquitted, the four experts were suspended in August 2000 while the SCRO carried out an investigation. This concluded that the experts had not been guilty of any malicious wrongdoing and all resumed work, albeit on restricted duties.
After a reorganization in 2007, the interim chief executive made clear that he did not want any of the experts to be transferred into the newly created Scottish Forensic Science Service. Ms McBride indicated at a meeting on 1 May 2007 that she would consider redeployment but wanted to discuss being reinstated to full duties. Instead, later that day, she was given a letter dismissing her on the basis that she was unable “to carry out the full range of [her] duties”. She claimed unfair dismissal.
Decisions of lower courts
The tribunal held that Ms McBride had been unfairly dismissed and ordered that she be reinstated “to the position of Fingerprint Officer and treated in all respects as if she had not been dismissed.” In other words, that she should be reinstated on restricted duties.
The EAT overturned that decision, holding that it was perverse for the tribunal to order reinstatement given that Ms McBride had demanded to be allowed to resume her excluded duties. Although the Court of Session (the Scottish equivalent of the Court of Appeal) held that the EAT’s decision was perverse, it concluded that the tribunal was wrong to order the police authority to reinstate Ms McBride because the law specified that reinstatement had to be unconditional and could not therefore be on altered contractual terms.
Supreme Court decision
The Supreme Court allowed Ms McBride’s appeal, holding that the tribunal had not been trying to impose a contractual limitation in the reinstatement order, but had simply recognized a practical limitation that applied to the scope of her work caused by circumstances beyond her control and that of her employer.
There were four reasons for this conclusion. Firstly, the tribunal was aware of the limitation that had applied to Ms McBride’s employment for several years. Secondly, it was aware that although she wanted to perform the excluded duties, her employer’s refusal was reasonable. Thirdly, Ms McBride had continued to make a valuable contribution during the time that her duties had been restricted.
Fourthly, the tribunal’s reference that she should be reinstated to a “non-court going fingerprint officer role” was included in parenthesis, suggesting that it was considering the practical context of the reinstatement rather than an alteration of her terms of employment. The order did not amount to an order that the employer must alter the status quo by allowing Ms McBride to resume the excluded duties. This interpretation was supported by the tribunal’s conclusion that the employer’s decision about the excluded duties was reasonable would “move [the] matter forward for both the claimant and the respondent”. This would not make any sense if the tribunal thought that its order was altering the terms of the contract of employment.
An employment tribunal has no power to order reinstatement on different terms and conditions of employment. However, the Supreme Court recognised that when making an order for reinstatement, tribunals could take into account existing limitations on the scope of the employee’s work.