Supreme Court addresses the proper approach to be taken by Employment Tribunals when ordering an unfairly dismissed employee be reinstated


In McBride v Scottish Police Authority 2016, the Supreme Court upheld an order of the Tribunal for reinstatement of an employee to the role in which she had been employed prior to dismissal, which included restricted duties. The employee was to be treated as if she had not been dismissed and the status quo prior to that dismissal included restricted duties.
The Appellant, Ms McBride, was one of the fingerprint experts involved in the McKie Scandal; where disputed identification of a fingerprint in a Scottish murder enquiry led to the acquittal of the alleged perpetrator, and the charging of a Detective Constable with perjury. The fingerprint experts at the centre of the scandal returned to work on restricted duties (they were not permitted to give fingerprint evidence in court). Following the establishment of the Scottish Police Authority Services (now known as the Scottish Police Authority (“SPA”)) Ms McBride wanted to discuss reinstatement to unrestricted duties. There was no discussion and she was subsequently dismissed, primarily because the interim chief executive did not want the officers in question to transfer to the new fingerprint service.
At first instance, the ET 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.’ However, the ET held it would be practicable for the SPA ‘to reinstate the claimant to the role of (non-court going) fingerprint expert’. This in effect would have the purpose of reinstating Ms McBride to her employment with restricted duties. The SPA appealed successfully to the EAT, following which Ms McBride appealed to the Court of Session, then to the Supreme Court.
Ms McBride’s appeal was unanimously allowed. Lord Hodge stated the key issue was whether the tribunal had erred by ordering to reinstate Ms McBride to employment which was different from the employment from which she had been dismissed (by referring to the restricted duties). For four reasons Lord Hodge felt that the ET was not seeking to introduce a contractual limitation on the scope of Ms McBride’s job description, instead it recognised a practical limitation on the scope of her work. The ET was aware the status quo of Ms McBride’s job was that which involved restricted duties, the decision to keep her on those restricted duties was held to be reasonable. Continuing a role that did not involve the restricted duties did not amount to alternative employed because of the fact the duties in question were not a substantial part of the job in question and Ms McBride had made a valuable contribution without carrying out her.

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