Reinstatement orders

The Supreme Court has held that an employment tribunal did not fall into an error of law by ordering reinstatement but with the same restriction of duties that applied prior to the Claimant’s dismissal.

In McBride v Scottish Police Authority, the Claimant was employed as a fingerprints officer since 1984. In 2000 a group of employees were suspended due to an investigation into an irregularity of a finger print found at a crime scene.  The investigation found that there had been no misconduct and the Claimant returned to work on restricted duties sometime later.  She was excluded from signing joint reports or giving evidence in court and the restrictions remained in place for the remainder of her employment.

Five years later, there was a structural reorganisation and her employment transferred.  The chief executive made it clear that he did not want her to transfer.  She was invited to discuss redeployment but asked that the restrictions be lifted.  She was then dismissed because of her inability to carry out the full range of her duties and the failure to identify suitable redeployment options. The tribunal found she had been unfairly dismissed and ordered reinstatement to her role and that she should be treated “in all respects as if she had not been dismissed”. The matter eventually made it to the Supreme Court following a series of appeals.

The Supreme Court held that a tribunal has no power to order reinstatement in terms which alter the contractual terms of employment.  It was however satisfied in this case that the tribunal was merely maintaining the status quo as she had previously been actively employed with those restrictions on her duties. Whilst the tribunal was aware that this was not what the Claimant had wanted before her dismissal, it does not have to be satisfied that the reinstatement order would be acceptable to both parties. The matter was however remitted back to tribunal for considering a variation of its order given the passage of time since it was made (some years later due to all the appeals).