The recent Supreme Court judgment of McBride v Scottish Police Authority is of interest to employers for a number of reasons. Firstly, the court upheld an order for reinstatement that could involve someone returning to work some nine years after her dismissal. Reinstatement orders in unfair dismissal cases are rare and are made in less than 1% of cases; an employer having to reinstate an employee who has not worked for nine years is fairly exceptional.
The case also provides helpful clarification from the Supreme Court on a discrete point of law in relation to reinstatement orders: a reinstatement order can be valid even if it involves the employee undertaking restricted duties on her return to work, provided that her contractual terms are the same.
The case background
McBride was one of four fingerprint officers who had identified a fingerprint as belonging to Shirley McKie (a detective constable) at the locus of a murder scene in 1997. McKie had given evidence at the murder trial to say that she had never been to the murder scene. She was tried for perjury and acquitted. At her perjury trial the evidence of the four fingerprint officers did not stand up to scrutiny. This led to a number of investigations into the fingerprint services in Scotland and intense public criticism.
Following a lengthy two-year suspension the four fingerprint officers returned to work in 2002. A report had concluded that there had been no malicious wrongdoing or capability issues on their part. On their return the fingerprint officers each undertook restricted duties. They were not asked to give evidence in future trials about fingerprints even though this had previously formed part of their duties. This was because it may have resulted in the McKie controversy being raised by defence counsel, which could distract from the real issues. McBride was ultimately dismissed on 1 May 2007.
The reinstatement order
McBride was successful in her claim of unfair dismissal and was awarded a reinstatement order. The appeal to the Supreme Court was in relation to the reinstatement order rather than the finding of unfair dismissal.
An order for reinstatement is 'an order that the employer shall treat the complainant in all respects as if he had not been dismissed' – it is not possible to reinstate into a role with different terms. The benefit to McBride in being reinstated was that she could be awarded loss of pay for the period up to being reinstated. In addition, the tribunal had commented that it was reasonable for the employer to decide that she could not return to a court-going role.
The Supreme Court decided that the tribunal had not sought to reinstate McBride on different contractual terms: the reinstatement order was unconditional and therefore lawful. It had simply commented that there was a practical limit on the work that she could do as a result of the history to this case.
As a result, McBride is entitled to be reinstated to her former job – nine years later. She will also receive compensation in relation to lost income prior to her reinstatement.
The practicalities of an employer having to reinstate an employee nine years later are considerable. It is likely that the organisation will have changed significantly during that time. It is unclear if there is a vacancy for McBride to return to and what training, if any, would be needed for her to resume her duties.
For McBride this is a clear victory. Though unfair dismissal compensation was subject to a cap of £60,600 in 2007, this may still serve as a warning shot for employers about the consequences of an unfair dismissal. They should remember that unfair dismissal is not always limited in terms of the compensation cap.
Elaine McIlroy is partner in the employment, pensions and immigration team at Weightmans