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 PC Shirley McKie, who denied ever being at the locus. In what was widely referred to in the media as the “Shirley McKie fingerprint scandal”, PC 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. Upon her return to work, the appellant was placed on reduced responsibilities: she no longer countersigned fingerprint identifications or attended court to provide expert evidence.

Around 2005, 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. The employer 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 and she brought a claim of unfair dismissal.

Key legislation

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

Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) decisions

In 2009, the ET found that the appellant had been unfairly dismissed and, crucially, directed that she should be reinstated. It was obliged to consider (under s 116(1) of the Act)

a) whether the appellant wished to be reinstated: this was the case;

b) whether it was practicable for the employer to comply with a reinstatement order: the ET believed it was, noting that she had worked as a fingerprint officer on restricted duties for many years, and finding, after some debate, that the employer/employee relationship of trust and confidence had not broken down;

c) whether the appellant caused or contributed to the dismissal: the ET found that she had not.

Whilst ordering reinstatement “to the position of fingerprint officer”, the ET found that it had been reasonable for the employer not to permit a return to court-going duties, so made clear 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. The EAT found that the ET’s decision was perverse given the background of considerable conflict and doubted the basis on which the ET had ordered reinstatement when in fact they were 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.

The appellant argued that reinstatement meant returning a person to the job they were doing as a matter of fact immediately prior to dismissal.  However, 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 ET 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 ET.

Supreme Court appeal

The appellant appealed to the Supreme Court and her appeal will be heard on 3 March 2016.  The questions before the court are:

  1. Did the ET reinstate the appellant to employment which was different to that from which she had been dismissed?
  2. Is an ET’s discretion to order reinstatement affected by an employee having been on restricted duties immediately before dismissal and, if so, how is it affected?
  3. Did the ET err in law and/or make a perverse decision by ordering reinstatement?
  4. Should the ET’s order for reinstatement be restored?