UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

Background

In January 1997 a fingerprint was taken from the scene of a murder. This print was identified by Ms McBride (the appellant) and three colleagues as being from Detective Constable Shirley McKie, who denied ever being at the locus. In what was referred to in the media as the “Shirley McKie fingerprint scandal”, DC McKie was later charged with perjury but acquitted.

The appellant and her colleagues were suspended from duties following PC McKie’s acquittal; however, no misconduct was found. On her return to work, the appellant was placed on restricted duties: she no longer countersigned fingerprint identifications or attended court to provide expert evidence.

Some years later, the fingerprint service was transferred into a new Scottish Police Services Authority (SPSA). The appellant’s employer believed that the continued employment of experts involved in the high-profile McKie case would be damaging to the new body’s reputation. It would not countenance a return by the appellant to court-going duties, but neither was it prepared to allow her to continue working on restricted duties.

The appellant was given the options of redeployment, a severance package or dismissal. She argued that she should remain in post and be permitted to return to full duties. Ultimately, her employment was terminated on 1 May 2007.

Unfair dismissal and order for reinstatement

In 2009 an employment tribunal found that the appellant had been unfairly dismissed.

If an individual is unfairly dismissed, a tribunal can order reinstatement: “an order that the employer shall treat the complainant in all respects as if he had not been dismissed” (s 114(1) Employment Rights Act 1996).

The tribunal directed that the appellant should be reinstated “to the position of fingerprint officer”. However, finding that it was reasonable for her employer not to permit a return to court-going duties, the tribunal stated that it was understood that “reinstatement would be to a non-court-going fingerprint officer role”.

The SPSA accepted the finding of unfair dismissal, but appealed the reinstatement order.

EAT appeal

The EAT found the employment tribunal’s decision to be perverse given the background of considerable conflict and doubted the basis on which the tribunal had ordered reinstatement when in fact it was ordering that the appellant be employed on a more limited basis than that specified in her contract of employment.

Inner House appeal

The appellant appealed to the Inner House of the Court of Session, arguing that reinstatement meant returning a person to the job they were doing as a matter of fact immediately prior to dismissal. The SPSA’s position was that reinstatement required a return to an individual’s full contractual terms and conditions.

The Inner House agreed with the SPSA: as the job of non-court-going expert did not exist contractually, she could not be re-instated to that role. The Inner House noted that the tribunal could have achieved its stated objective via the alternative remedy of re-engagement, which allows an individual to return to alternative employment but, as the appellant had not requested this, it had not been an option for the tribunal.

Supreme Court appeal

The appellant appealed to the Supreme Court, arguing that the reinstatement order should stand as the tribunal had sought to place her in the same contractual relationship as she was in before her dismissal. The employer (now the Scottish Police Authority) argued that the tribunal’s reinstatement order was invalid as it had sought to alter the terms of the employment contract.

As a fallback position, the SPA argued that the reinstatement order was perverse as it would enable the appellant to assert a contractual right to carry out the excluded duties, and her employer would then be in material breach of contract if it refused to allow this.

Supreme Court decision

The Supreme Court unanimously allowed the appellant’s appeal.

It stressed that an employment tribunal cannot order reinstatement in terms which alter the contractual terms of employment.

However, it found that the tribunal’s order in this case did not impose a contractual limitation that removed the restricted duties from the appellant’s job description, but recognised a practical limitation to the scope of her work caused by circumstances beyond her, and her employer’s, control. In support of this it noted that the tribunal:

• Was aware of the terms of the appellant’s contract and that for several years she had been employed on restricted duties. That was the status quo to which she would have returned.
• Was aware that the appellant wanted to perform the excluded duties, but held that the SPSA’s decision that she could not return to them was reasonable.
• Rejected that idea that the restricted duties amounted to alternative employment: it accepted evidence that significant work was carried out by fingerprint experts that did not involve the excluded duties.
• Via it’s reasoning suggested that it was considering the practical context of the reinstatement order rather than an alteration of the terms of employment.

In relation to the SPA’s alternative argument that the reinstatement order risked placing it in material breach of contract, the Supreme Court held that this argument had been made too late. In any event, it was not persuaded by it: it was not clear from the tribunal’s findings that barring the appellant from the excluded duties would amount to a fundamental alteration of her job.

Supreme Court comments on reinstatement

The Supreme Court commented that, in a reinstatement order, whilst terms and conditions of employment must be reinstated, and rights and privileges (such as seniority and pension rights) must be restored, reinstatement does not require the recreation of the precise factual conditions at the point of dismissal. So, for example, an employer could give an employee a new line manager following reinstatement if this was desirable to avoid further conflict.

What next?

The Supreme Court remitted the case to the original tribunal (or as close to that as possible) to reconsider, in light of the passage of time, the amount the employer should pay the appellant in respect of lost benefits such as arrears of pay, and presumably to set a new date for compliance with the reinstatement order.

What happens if an employer fails to comply with a reinstatement order?

A tribunal cannot force an employer to comply with a reinstatement order and take a former employee back into the workforce. However, if an employer fails to comply, a tribunal will order it to pay unfair dismissal compensation to the former employee and (if it finds that it was practicable for the employer to comply with reinstatement) additional compensation of between 26 and 52 weeks’ pay (subject to the statutory limit on a week’s pay).