Supreme Court judgment reminds employers of the risk of reinstatement orders

When an employee succeeds in an unfair dismissal claim an Employment Tribunal can order that the individual be reinstated or re-engaged. Whilst such orders are very rare, the decision of the Supreme Court to uphold a reinstatement order in McBride v Scottish Police Authority is a reminder of this risk. This Judgment says that this Tribunal was right to order reinstatement, even where that involved the employee being reinstated to a role which had reduced/limited duties.

The facts

Ms McBride was employed as a fingerprint officer.  Such officers were usually involved in both writing reports and giving expert evidence at trial. Following a high profile case in which a print found at a murder scene was ruled to be an error (followed by a public inquiry), the decision was made by the Lord Advocate not to use Ms McBride (or three of her colleagues) as an expert witness due to the possibility that their evidence would be challenged in cross-examination based on that case. She therefore worked from 2002 on restricted duties able to do only part of her job, albeit the evidence before the Tribunal was that she still did a worthwhile role. When the fingerprint service was reorganised and Ms McBride transferred in 2007 she was dismissed due to her inability to carry out the full range of her duties (and without a redeployment opportunity having been identified for her). That dismissal was found to be unfair.

The issue for the Supreme Court arose because the Employment Tribunal ordered that Ms McBride be reinstated in her old role as a fingerprint officer. In doing so the Tribunal concluded that it would be practicable for Ms McBride to be reinstated “to the role of (non court going) fingerprint expert”. In an earlier appeal, the Scottish Inner House of the Court of Session had held that reinstatement was not perverse, but had not upheld the decision as it interpreted the Judgment as ordering reinstatement on altered contractual terms. The Supreme Court has allowed Ms McBride’s appeal and confirmed that the Tribunal was able to order reinstatement on these terms, where Ms McBride was reinstated to the same contractual relationship as that she was in before her dismissal.

What does this mean for me?

Such orders are very rare, occurring in less than 1% of cases. However, this Judgment reminds us that reinstatement is a possible outcome of an unfair dismissal claim. It potentially broadens the circumstances when reinstatement may be ordered if a Tribunal can return an employee to a reduced duties role. For re-engagement, a Tribunal has the ability to order an employer to take back an ex-employee in a comparable job on such terms as the Tribunal decides. When considering the risks and potential remedies available after an unfair dismissal do not entirely ignore this risk. With this Judgment fresh in everyone’s minds, you may find that it is more likely to be considered by a Tribunal, or argued against you.

When deciding whether to reinstate or re-engage a Tribunal must take into account: the wishes of the employee; whether it is practicable for the employer to comply; and whether the employee contributed to the dismissal. In reality most unfairly dismissed employees do not want their jobs back. However this can be a greater risk if it is virtually impossible for the employee to continue in their chosen field without returning to work for you — so for those of you who are effectively the only local employer for a particular skill or career, such an order is far more likely.

Comment

Even with this rarely used power, a Tribunal cannot force you to take back an unfairly dismissed employee. If reinstatement or re-engagement is ordered, you can refuse to comply. In those circumstances the Tribunal will award the employee an additional penalty award of 26-52 weeks’ pay (currently capped at £24,908).  However, the employee also gets the “lost” salary from dismissal to refused reinstatement, as well as the usual unfair dismissal awards. So such an order is a potentially expensive outcome which needs to be considered and addressed whenever defending an unfair dismissal claim.