McBride v Scottish Police Authority (Scotland) [2016] UKSC 27

Ms McBride, a fingerprint officer dismissed following the controversial McKie identification dispute, was found to have been unfairly dismissed. The Supreme Court held the Employment Tribunal had not erred in ordering her reinstatement, recognising practical rather than contractual limitations on her duties.

Facts

Ms McBride was employed as a fingerprint officer at the Scottish Criminal Records Office (SCRO) from 1984. In 1997, she and three colleagues identified a fingerprint at a murder scene as belonging to Detective Constable Shirley McKie. The identification became highly controversial; DC McKie was charged with perjury and acquitted, generating extensive scrutiny of the Scottish fingerprint service.

Following investigations (including the Black report, which found no misconduct), Ms McBride returned to work in 2002 on restricted duties, undertaking retraining. She was not, however, permitted to resume court-going duties (signing joint reports and giving evidence), because the Crown Office, under the then Lord Advocate Lord Boyd, considered that calling any of the four experts would risk trials becoming sidetracked into the McKie controversy.

When her employment transferred to the Scottish Police Services Authority (SPSA) on 1 April 2007, Assistant Chief Constable David Mulhern, the interim chief executive, had determined that Ms McBride and her colleagues should not transfer in their existing roles. On 1 May 2007, she was dismissed on the stated basis of inability to perform the full range of duties and the absence of redeployment options.

Issues

The central issue was the correct interpretation of the Employment Tribunal’s reinstatement order: specifically, whether the ET had erred in law by purporting to reinstate Ms McBride to employment on altered contractual terms (i.e. excluding court-going duties), contrary to the requirement that reinstatement under section 114(1) of the Employment Rights Act 1996 be unconditional.

A secondary issue (raised late by the respondent) was whether the ET’s assessment of the practicability of reinstatement was perverse, in that it exposed the employer to a potential claim for fundamental breach of contract arising from the continued exclusion of court duties.

Arguments

Appellant (Ms McBride)

Mr MacNeill QC submitted that the ET had not altered the contractual terms but had simply recognised a practical limitation arising from the Crown Office’s stance. Reinstatement returned Ms McBride to the status quo ante – the contractual position she occupied immediately before dismissal, which included the practical restriction on court duties.

Respondent (SPA)

Mr Napier QC argued that the ET’s order purported to reinstate Ms McBride on altered terms by excluding court-going duties from her job description, which was beyond the ET’s statutory powers. He also advanced a new argument that the ET’s practicability assessment was perverse because reinstatement would return the parties to contractual conflict, with Ms McBride potentially asserting a fundamental breach.

Judgment

Lord Hodge, with whom Lady Hale, Lord Clarke, Lord Wilson and Lord Reed agreed, allowed the appeal.

Statutory framework

The Court reviewed sections 112-117 of the Employment Rights Act 1996. A reinstatement order under section 114(1) requires that the employer treat the complainant in all respects as if not dismissed; it differs from re-engagement under section 115(1), which may involve different employment. The ET has no power to order reinstatement on altered contractual terms.

The Court endorsed the distinction drawn by Simler J in British Airways plc v Valencia [2014] IRLR 683, though qualifying that reinstatement does not require recreating precise factual conditions (such as the same line manager); it is the contractual rights, terms, conditions, and accrued privileges that must be restored.

Importantly, at the stage of making a reinstatement order, the ET’s assessment of practicability is provisional, not conclusive (citing Timex Corpn v Thomson [1981] IRLR 522 and Port of London Authority v Payne [1994] ICR 555).

Interpretation of the ET’s order

The Supreme Court held that the ET’s order, on a proper reading, did not alter the contractual terms. Lord Hodge identified four reasons:

First, the ET understood that Ms McBride had for several years worked under contractually unchanged terms but had practically been excluded from court duties; that was the status quo to which she would return.

Second, the ET had found that the SPSA’s decision to bar her from court duties was reasonable, given that the decision to call expert witnesses lay with the Crown Office, not the employer.

Third, the ET had rejected the suggestion that non-court-going work amounted to alternative employment, finding it constituted a valuable and substantive role.

Fourth, the parenthetical reference at paragraph 356 of the ET’s reasons to reinstatement being to “a non court going fingerprint officer role” reflected the practical context rather than a contractual alteration.

Late argument on practicability

The Court rejected the respondent’s late submission of perversity. It had not been advanced before the ET and was not supported by relevant findings of fact. In any event, the evidence showed that only 3.6% of cases required a joint report and only 0.8% involved court attendance, and several other fingerprint officers worked without court duties. Mr MacNeill accepted that Ms McBride had no contractual right to sign reports or give evidence, since work in the criminal courts was not in the employer’s gift.

Implications

The decision clarifies several aspects of the statutory regime for remedies in unfair dismissal:

It confirms the binary distinction between reinstatement (section 114) and re-engagement (section 115): reinstatement must restore the same contractual terms, while re-engagement permits changes. A tribunal has no power to order reinstatement on altered contractual terms.

It qualifies the suggestion that reinstatement requires precise recreation of factual conditions at dismissal: practical matters such as line management may legitimately be altered, provided contractual rights, terms, and accrued privileges are preserved.

It reaffirms that practicability is assessed in two stages – provisionally when the order is made, and conclusively (with the burden on the employer) if non-compliance is later asserted under section 117.

The case also illustrates the importance of careful reading of ET reasoning: a reinstatement order is not invalidated merely because external practical constraints mean certain duties cannot in fact be performed, provided the contractual position is unchanged.

For practitioners, the decision is significant in dismissal cases involving employees whose roles have been practically narrowed by external circumstances (such as third-party decisions). It is also a reminder that arguments not advanced below cannot easily be deployed at appellate level, especially where they depend on fact-sensitive findings.

Verdict: Appeal allowed. The Employment Tribunal had not erred in ordering reinstatement; the case was remitted to the original tribunal (or one including its remaining members) to consider variation of the order under section 114(2) of the Employment Rights Act 1996 in light of the time that had passed.

Source: McBride v Scottish Police Authority (Scotland) [2016] UKSC 27