McBride v Scottish Police Authority

The Supreme Court allowed Ms McBride's appeal and held that the Employment Tribunal's order of reinstatement complied with section 114(1) of the Employment Rights Act 1996. The tribunal had ordered that the employer treat the claimant "in all respects as if she had not been dismissed" and, properly read in context, did not purport to alter the contractual terms of employment by imposing a permanent exclusion from court-going duties.

The court applied the statutory scheme of sections 112 to 117 of the 1996 Act and emphasised that a reinstatement order restores the contractual rights and privileges which the employee enjoyed immediately before dismissal. The tribunal's assessment of practicability under section 116 was a provisional, prospective assessment; a final determination is made only at the enforcement stage under section 117 when the employer bears the burden of proving non-practicability.

The Supreme Court rejected the employer's late argument that reinstatement would be perverse because it would recreate a contractual conflict exposing the employer to a repudiatory breach. That contention had not been argued below and, on the facts found by the tribunal (including that much fingerprint work did not require court attendance and that the employer's exclusion was reasonable), a claim for fundamental breach seemed remote.

The case concerns unfair dismissal and the proper scope of a tribunal order for reinstatement under the Employment Rights Act 1996.

Background and facts:

• Ms McBride was a fingerprint officer employed from 1984. Four officers were involved in a disputed identification in a 1997 murder inquiry; public controversy and inquiries followed.
• Ms McBride had been restricted from "court-going" duties (signing joint reports and giving oral evidence) after investigations. She returned to restricted duties in May 2002 and underwent retraining but was not restored to the excluded duties.
• Her employment was transferred to the Scottish Police Services Authority (SPSA) on 1 April 2007. Senior management made it clear they did not intend to allow the four officers to transfer to the new service in court-going roles. On 1 May 2007 the SPSA terminated Ms McBride's employment for inability to carry out the full range of duties and lack of redeployment options.

Procedural history:

• Employment Tribunal (ET) (judgment 26 January 2009): found unfair dismissal and ordered reinstatement, together with arrears and restoration of rights and privileges, on the basis that reinstatement to a non-court-going fingerprint officer role was practicable.
• Employment Appeal Tribunal (EAT): revoked the ET's remedy decision and remitted to a freshly constituted tribunal, holding the ET's view on practicability to be perverse.
• Inner House, Court of Session (Extra Division) [2013] CSIH 4: rejected the EAT's finding of perversity but held the ET had erred in law by effectively ordering employment on altered contractual terms; remitted the matter for reconsideration.
• Supreme Court [2016] UKSC 27: Ms McBride appealed to the Supreme Court.

Nature of the claim and relief sought: Ms McBride claimed unfair dismissal and sought reinstatement to her former post.

Issues for decision:

• Whether the ET had erred in law by imposing reinstatement on terms that altered the contractual position of the claimant.
• Whether the ET's provisional finding that reinstatement was practicable was perverse or otherwise flawed.
• Whether a reinstatement order would, in practice, expose the employer to a claim of fundamental breach by virtue of the ongoing exclusion from court-going duties.

Court's reasoning:

• The court reviewed sections 112–117 of the Employment Rights Act 1996 and emphasised the distinction between reinstatement (section 114) and re-engagement (section 115). A reinstatement order restores the employment relationship "in all respects as if [the employee] had not been dismissed"; it cannot alter contractual terms.
• The ET's order, read in context, was an order to restore the contractual relationship as it had existed in the years prior to dismissal when the claimant had been employed on restricted duties. The tribunal had also expressly held that the employer's decision to bar the claimant from court-going duties was reasonable.
• The ET's assessment of practicability under section 116 was a provisional, prospective evaluation. The court noted that a conclusive determination of practicability is made at the enforcement stage under section 117, where the employer bears the burden of proving non-practicability.
• The Supreme Court rejected the employer's late-raised argument that reinstatement would inevitably lead to contractual conflict and a claim for repudiation. That argument had not been advanced below and, on the facts found by the ET (including low incidence of court attendance and the reasonableness of the bar), it appeared unlikely to succeed.

Disposition: The Supreme Court allowed the appeal, rejected the employer's late argument, and remitted the case to the original tribunal (or a tribunal including any original members still in office) to consider variation under section 114(2) in view of elapsed time. The court invited submissions on expenses.

Appeal allowed. The Supreme Court held that the Employment Tribunal's reinstatement order was properly framed under section 114(1) of the Employment Rights Act 1996 and did not unlawfully alter the contractual terms of employment. The tribunal's provisional assessment of practicability under section 116 was appropriate and the employer's late argument that reinstatement would create an unavoidable contractual conflict was rejected as unargued below and unlikely to succeed on the facts found. The matter was remitted to the original tribunal to consider variation under section 114(2) because of the passage of time.

Employment Tribunal (judgment dated 26 January 2009) → Employment Appeal Tribunal (EAT) revoked the ET's remedy and remitted to a freshly constituted tribunal → Inner House, Court of Session (Extra Division) [2013] CSIH 4 (considered and remitted) → Supreme Court [2016] UKSC 27 (appeal allowed).