McBride v Scottish Police Authority

An order for reinstatement following unfair dismissal restores the employee’s contractual rights, terms and conditions, together with such privileges as seniority and pension rights. It need not recreate every factual feature of the workplace at the date of dismissal. The tribunal cannot, however, alter the contract under the guise of reinstatement.

A practical restriction on the work allocated to the employee is compatible with reinstatement where it does not change the contractual terms. At the order-making stage, practicability is assessed prospectively and provisionally. A conclusive assessment arises only following non-compliance, when the employer bears the burden of showing that compliance was impracticable.

Ms McBride, a fingerprint officer, was dismissed after being prevented from signing fingerprint reports or giving evidence in court. An Employment Tribunal found the dismissal unfair and ordered her reinstatement as a fingerprint officer, treating her in all respects as if she had not been dismissed. Its reasons contemplated that she would continue initially in the restricted, non-court-going role she had performed before dismissal.

The Employment Appeal Tribunal revoked the reinstatement order as perverse and remitted the case for assessment of compensation. The Inner House, in [2013] CSIH 4, rejected the finding of perversity but held that the tribunal had unlawfully ordered employment on altered contractual terms. It therefore declined to restore reinstatement.

The central issue before the Supreme Court was whether the tribunal’s order altered the employment contract or merely recognised the practical restriction under which the existing contract had previously operated.

1. The appeal was allowed unanimously. Lord Hodge, with whom Lady Hale, Lord Clarke, Lord Wilson and Lord Reed agreed, held that the Employment Tribunal had ordered reinstatement to the same contractual employment rather than employment on altered terms.

2. Under section 114(1) of the Employment Rights Act 1996, reinstatement restores the employee’s contractual rights, terms and conditions, and associated rights and privileges. It does not require recreation of every factual workplace condition, including retention of the same line manager. By contrast, re-engagement under section 115(1) may involve comparable or other suitable employment. A tribunal has no power to order reinstatement on terms that alter the employment contract.

3. The tribunal’s formal order reproduced the substance of section 114(1). Read in context, its references to a non-court-going role recognised the practical status quo before dismissal. They did not remove duties from the contractual job description. The tribunal knew that Ms McBride had remained productively employed as a fingerprint officer while barred from signing reports and giving evidence. It also regarded the employer’s maintenance of that bar as reasonable.

4. Practicability under section 116(1) is assessed prospectively and provisionally when reinstatement is ordered. The tribunal need only reasonably conclude that compliance is likely to be practicable. If the employer subsequently fails to comply, section 117 requires a separate, conclusive assessment on which the employer bears the burden of proving impracticability.

5. The respondent’s new argument that reinstatement would expose it to a claim for fundamental breach of contract came too late. It had not been developed below, and the tribunal had therefore made no findings directed to it. In any event, exclusion from the court-related duties was not shown to alter fundamentally the nature of the job. Whether unilateral changes repudiate an employment contract depends on the particular facts.

6. The case was remitted to the original Employment Tribunal, or a tribunal including those original members still in office, to consider varying the matters specified in its order under section 114(2), given the passage of time.

1. United Kingdom Supreme Court: Allowed the appeal unanimously, restored the legal basis of the reinstatement order and remitted the case to the original Employment Tribunal, so far as practicable, to consider variation under section 114(2) of the Employment Rights Act 1996.

2. Inner House of the Court of Session: In [2013] CSIH 4, rejected the Employment Appeal Tribunal’s finding of perversity but held that the Employment Tribunal had ordered reinstatement on altered contractual terms. It refused to restore reinstatement and remitted the case to the original tribunal.

3. Employment Appeal Tribunal: Revoked the remedy decision as perverse and remitted the case to a freshly constituted tribunal to determine compensation.

4. Employment Tribunal: Found the dismissal unfair and ordered reinstatement as a fingerprint officer, with restoration of arrears, pension rights and other privileges.