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.
Thanks to Neil Addison of New Bailey Chambers for preparing this case summary and to Daniel Barnett’s Employment Law.
