Reinstatement after Unfair Dismissal

21 June 2016

Before making an order for reinstatement, does an employment tribunal have to be satisfied that reinstatement would be acceptable to both parties?

No, held the Supreme Court in McBride v Scottish Police Authority.

The Claimant was a fingerprint officer who had been involved in a notorious Scottish Criminal case which had led to a Detective, Shirley McKie, being charged and then acquitted of perjury concerning a contested fingerprint at a murder scene. The case had generated intense media and political criticism in Scotland.

The Claimant was subsequently unfairly dismissed following a reorganisation. The employment tribunal ordered her reinstatement under s114 Employment Rights Act, but impliedly accepted that she would be employed in a non- court going role. The employer appealed on the basis that the Claimant would not accept such a restriction.

The Supreme Court held that the only obligation under s114 was that a Claimant be restored to their contractual employment. On the facts it would be practicable to restrict the Claimant to non- court employment and there was no evidence such a restriction would be in breach of contract

A decision on very specific facts, but the judgment is a useful analysis of the principles of reinstatement and redeployment.

With thanks to Daniel Barnett’s employment law bulletin which provided the details of this case.