A fingerprint officer who had been kept off court work after a disputed identification was unfairly dismissed when she would not move to another role. The Employment Tribunal ordered her reinstatement, but the Inner House treated that order as an unlawful change to her contract. The Supreme Court held that the tribunal had restored the contract as it stood, while recognising that, in practice, she would not be asked to sign reports or give evidence.
How the dispute arose
A disputed fingerprint identification led to scrutiny of the work of Ms McBride and three colleagues.
When the officers returned to work after suspension, their duties in practice excluded signing reports and giving evidence in court. They continued to work as fingerprint officers.
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David Mulhern, interim chief executive of the new Scottish Police Services Authority, did not want the four experts to transfer. Ms McBride’s employment nevertheless transferred on 1 April 2007. She was willing to discuss redeployment, but wanted first to discuss a return to unrestricted duties. On 1 May 2007 she was dismissed because she could not carry out the full range of her duties and no suitable redeployment had been identified.
From the tribunal to the Supreme Court
The Employment Tribunal held that the dismissal was unfair. Its order of 26 January 2009 was:
The claimant shall be reinstated by the respondent to the position of Fingerprint Officer and treated in all respects as if she had not been dismissed.
It also awarded arrears of pay and ordered restoration of her rights and privileges, including pension rights. In its reasons it said that reinstatement was understood to be to a non-court-going fingerprint officer role, that compliance was practicable, and that an order was just because her conduct had not contributed to the dismissal. It thought that its own conclusion — that the employer had reasonably decided she could not return to court duties — would help both sides move forward.
The Employment Appeal Tribunal revoked the remedy as perverse, because Ms McBride still wanted the excluded duties, and sent the question of compensation to a newly constituted tribunal. The Inner House rejected that finding of perversity and the suggestion that the original tribunal had been partial. It nevertheless held that the tribunal had erred by ordering employment on altered contractual terms. Reinstatement, it said, had to be unconditional. It refused to restore the order, while remitting the case to the original tribunal. In the Supreme Court the Authority, which had taken over the former employer’s rights and obligations on 1 April 2013, did not defend the perversity or partiality points.
Reinstatement does not rewrite the contract
Under sections 112 to 117 of the Employment Rights Act 1996, the tribunal must consider reinstatement before re-engagement, and may award compensation if it makes neither order. Reinstatement means that the employer must treat the complainant in all respects as if he or she had not been dismissed. Re-engagement may be in comparable or other suitable employment and can involve a different employer, different work or different pay. Lord Hodge, with whom Lady Hale, Lord Clarke, Lord Wilson and Lord Reed agreed, held that reinstatement restores the contractual terms and privileges such as seniority and pension rights. It need not recreate every circumstance at dismissal, such as the same manager, but the tribunal cannot order reinstatement on altered terms.
When the tribunal is deciding whether to make the order, its view of practicability is only provisional. If the employer later does not comply, compensation can be awarded unless the employer shows that compliance was not practicable. The tribunal therefore did not need a final conclusion that Ms McBride would accept continued exclusion from court work. It was enough if it reasonably thought that compliance was likely to be practicable.
Read alone, the order followed the statutory wording and was not open to criticism. Lord Hodge held that the reasons did not turn it into a contractual removal of duties. The tribunal knew the contract and knew that, for several years, Ms McBride had worked without signing reports or giving evidence: that was the position to which she would return. It knew she wanted those duties, but held the employer’s decision reasonable, since calling a witness was for the Crown Office and the Lord Advocate had made his view clear. It rejected the idea that restricted work was a different job. Managers had described the valuable work she did, and other fingerprint officers continued without court-going duties. The parenthetical reference to a non-court-going role described the practical context and confirmed that the order did not require those duties to be restored. The tribunal’s hope that its conclusion would move matters forward would have made no sense if it had thought it was changing the contract.
An argument raised too late
The Authority argued in the alternative that the order was perverse for another reason: it would return the parties to contractual conflict, because Ms McBride could claim a right to the excluded duties and treat a refusal as a serious breach. Lord Hodge held that this came too late. It had not been developed below, and the tribunal had made no findings directed to it. Whether removing particular work repudiates a contract depends on the facts, including whether the employee reasonably expected to do work she enjoyed or which maintained her skills. Those questions were not asked.
The findings which did exist did not establish a fundamental change. Only 3.6% of cases required a joint report to be signed, and an expert attended court in only 0.8%. Several officers had been excused from court or never required to attend. The tribunal had found both that Ms McBride performed a valuable role and that maintaining the bar was reasonable. There was no finding that she had asserted a breach of contract, and her counsel accepted that she had no contractual right to sign reports or give evidence, because court work was not hers to be given by the employer. On those findings, a breach seemed a remote possibility, and the argument was rejected.
Verdict: The Court unanimously allowed McBride’s appeal. The reinstatement order did not change her employment contract. The case returned to the tribunal to consider the payments and other matters under section 114(2) in light of the time that had passed.
