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Back on the case?

18 July 16

The scope and effect of reinstatement orders in unfair dismissal cases has been clarified by the UK Supreme Court following the appeal by dismissed fingerprint expert Fiona McBride

by Elaine McIlroy

The recent Supreme Court judgment of McBride v Scottish Police Authority [2016] UKSC 27 (15 June 2016) is thought-provoking on a number of levels.

First, the court upheld an order for reinstatement which involves an employee potentially returning to work nine years after dismissal. Reinstatement orders in unfair dismissal cases are made in fewer than 1% of cases – an employer being faced with reinstating an employee who has not worked for some nine years to her former job is exceptional and highly challenging.

The case is also interesting because of its context, that being the fallout from the famous case involving Detective Constable Shirley McKie, acquitted of perjury in 1999 following flawed fingerprint evidence which in turn led to severe criticism of the fingerprint service in Scotland. This highly controversial situation almost 20 years ago has caused significant embarrassment to the fingerprint service in Scotland ever since, and the McBride case has shone a light on it once again.

Further, the case provides helpful clarification from the Supreme Court on a discrete point of law in relation to reinstatement orders. It held that a reinstatement order can be valid even if it involves the employee undertaking restricted duties on her return to work, provided her contractual terms are the same.

Employment saga

Ms McBride was one of four fingerprint officers who had identified a fingerprint at the locus of a murder scene in 1997 as belonging to DC McKie. McKie had given evidence claiming that she had never been to the locus where the fingerprint was found. She had been ordered not to attend the scene.

She was tried for perjury and acquitted. At her trial there were differences of expert opinion about the identification of the fingerprint evidence; ultimately the evidence of the four fingerprint officers did not stand up to scrutiny. This led to a number of investigations into the fingerprint service in Scotland, and intense criticism of the way it had operated in the run-up to the McKie prosecution.

In the investigations which followed the acquittal, four fingerprint officers (including McBride) were suspended for a period of almost two years. A report, published in February 2002, concluded that there had been no malicious wrongdoing on the part of the fingerprint officers which had led to the disputed fingerprint identification. It also concluded that there was no misconduct, and no capability issues arising in relation to the four officers. As a result, all four returned to work in May 2002. These investigatory findings were later endorsed by a public judicial enquiry in December 2011, which also held that McBride and her colleagues had not acted improperly in identifying the fingerprint.

On their return to work, the fingerprint officers each undertook restricted duties. Although this had previously formed part of their duties, they were not asked to give evidence in future trials about fingerprint evidence because it might have led to the McKie controversy being raised by defence counsel in order to attack the evidence that was being presented, thereby distracting from the real evidence.

The Scottish Government then decided to establish the Scottish Police Services Authority (SPSA), and within it the Scottish Forensic Science Service, which included the fingerprint service, alongside others. The interim chief executive of the SPSA decided that he did not want McBride or the other three experts to transfer over.

McBride’s employment transferred to the SPSA. At a meeting in September 2006 between McBride’s employer and her trade union, the interim chief executive indicated that the four experts could be redeployed within Strathclyde Police; he had not considered the possibility of them returning to full duties. McBride wanted to return to full duties within the newly established Scottish Forensic Science Service. The other three accepted redundancy packages.

Following the transfer of her employment, McBride was not given the chance of retaining her existing role or of returning to full duties: the SPSA would only discuss redeployment with her. She was dismissed shortly afterwards on 1 May 2007, on the basis that she could not carry out full duties and no redeployment opportunities had been identified.

Controversial order

McBride was successful in her claim for unfair dismissal and in relation to her request to be reinstated to her previous job. An order for reinstatement is defined as “an order that the employer shall treat the complainant in all respects as if he had not been dismissed”. The employee is entitled to the same terms and conditions, rights and privileges as before (including the benefit of any pay rises). In ordering reinstatement, the tribunal had to consider whether it was reasonably practicable to reinstate her. The benefit in being reinstated was that she could be awarded loss of pay for the period up to her reinstatement, in addition to being given her job back. Given the specialist nature of her role it would seem unlikely that she would be able to find employment elsewhere.

Although the reinstatement order itself was to return to her previous job, the tribunal commented in its judgment that it considered it was reasonable for the employer to decide that she could not return to a courtgoing role. McBride had still wanted to carry out her full duties.

The Scottish Police Authority (the respondent, as successor authority) appealed against the reinstatement order to the Employment Appeal Tribunal, which decided that it was perverse on the grounds that returning McBride to a non-courtgoing role would not work due to her demand to resume the excluded duties. The EAT thought that it would be liable to have “disastrous consequences”.

This finding was appealed to the Court of Session, which held that the employment tribunal had erred in law in ordering reinstatement on altered contractual terms, whereas an order for reinstatement had to be unconditional.

Tribunal reinstated

On McBride's further appeal, the central issue before the Supreme Court was whether the tribunal had purported to reinstate her to employment which was different from the employment from which she was dismissed. Her counsel argued that the order was to reinstate her into the same employment (on the same contractual relationship as she was in prior to her dismissal).

The Supreme Court decided that the tribunal in this case had not sought to reinstate McBride on different contractual terms. The reinstatement order was therefore lawful and unconditional. The tribunal had simply commented that there was a practical limit on the work she could do as a result of the history to this case – circumstances that were beyond her control and beyond her employer’s control. This was not the same as seeking to reinstate her on different contractual terms.

As a result, McBride is entitled to be reinstated to her former job – nine years later, and she will receive compensation for lost income. If her employer refuses to comply with the order, the tribunal can make an additional award of compensation of between 26 and 52 weeks’ pay.

The practicalities of an employer having to reinstate an employee so long after the employment has ended are considerable. It is likely that the organisation will have changed significantly during McBride’s absence. It is unclear whether there is a vacancy for her to return to at this stage and what training, if any, would be needed for her to resume her duties. This case is unusual in that the parties have litigated for several years with the employer seeking to avoid the reinstatement order, and yet the employee is still prepared to return to work.

Reinstatement to what?

The Supreme Court’s decision does provide useful clarification that simply because an employee will not resume her full duties as before, does not mean that a reinstatement order is not competent. The Supreme Court, having considered the previous case of British Airways plc v Valencia [2014] IRLR 683, concluded that “it is the contractual rights, the terms and conditions of employment, which must be reinstated” under a reinstatement order.

The Justices distinguished this from the idea that a reinstatement order must recreate the precise, factual conditions which existed before the dismissal, which may be impossible in some circumstances. Rather, they placed more emphasis on the contractual relationship between employee and employer, seeking to ensure that the employee would be no worse off in terms of the nature and terms of their contract of employment.

For McBride, this is a clear victory. Instead of capped compensation, she secured substantial back pay, and her job back. While she might be delighted, for other employers there is less reason to celebrate.

Elaine McIlroy is a partner specialising in employment law at Weightmans (Scotland) LLP

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