McBride v Scottish Police Authority
 UKSC 27;  WLR (D) 308
2016 June 15
Baroness Hale of Richmond DPSC, Lord Clarke of Stone-cum-Ebony, Lord Wilson, Lord Reed, Lord Hodge JJSC
Employment — Unfair dismissal — Reinstatement — Claimant fingerprint expert having given evidence in high profile trial — Evidence later challenged by other experts leading to acquittal — Employer placing claimant on restricted duties excluding court work owing to prosecuting authorities’ refusal to use claimant in future cases — Claimant carrying out restricted duties for several years but then dismissed — Employment tribunal holding dismissal unfair and ordering reinstatement “as a non court going fingerprint officer” — Reinstatement order quashed by appellate court as amounting to order to employ claimant on amended terms — Whether order alteration of terms of contact or mere recognition of practical limitation on scope of claimant’s work
The claimant was one of four fingerprint experts employed by a Scottish police authority whose evidence that a disputed fingerprint found at the scene of a murder was that of a serving police officer who had earlier denied having been there had led to that officer’s conviction for perverting the course of justice. The officer was later acquitted on appeal after the fingerprint identification evidence was challenged by other experts. The conviction of the officer on the basis of the fingerprint evidence and her subsequent acquittal attracted widespread media interest in Scotland. After an inquiry concluded that the disputed identification did not involve any misconduct or lack of capability, the claimant was allowed to return to work but on restricted duties which excluded her from signing reports or giving evidence in court because the prosecution authority, which was responsible for the calling of fingerprint evidence, had stated it could not risk calling her as a prosecution witness in future trials because the reliability of her evidence was likely to become a major focus of the defence case. The claimant carried out such duties for several years but was eventually dismissed on the ground of her “inability” to carry out the full range of her existing duties. She brought a successful claim for unfair dismissal. On the question of remedy, the employment tribunal held that the claimant could still fulfil a useful role as a fingerprint officer on non court work — as some other officers did — in that she could still carry out 10 of the 12 roles listed in her contract of employment. It therefore ordered her reinstatement as a “non court going fingerprint officer”. The Employment Appeal Tribunal reversed that decision and remitted the case to the tribunal to award compensation in lieu of reinstatement. The Inner House of the Court of Session dismissed the claimant’s appeal against that decision on the ground that reinstatement had to be unconditional, whereas the tribunal’s order had amounted to an order to employ the claimant on altered contractual terms. The claimant appealed.
Held, appeal allowed. The employment tribunal’s order that the claimant be reinstated to a “non court going role” was an expression of its understanding of the practical context of the reinstatement and not an alteration of the terms of her contract. It made clear that her reinstatement did not require her employer to restore her to the duties from which she had been excluded but recognised a practical limitation on the scope of her work because of circumstances beyond her control and also that of her employers: if prosecutors would not use her in court there was nothing her employers could do to give her such duties. The employment tribunal had known that, for several years, the claimant had worked without being asked to sign reports or give evidence in court and the reinstatement order simply returned her to that status quo (post, paras 40–44, 54). Appearances
Calum MacNeill QC and Kenneth Gibson (both of the Scots Bar) (instructed by Thorley Stephenson SSC, Edinburgh) for the claimant.
Brian Napier QC (of the Scots Bar) and Tom Brown (instructed by Maclay Murray & Spens LLP, Edinburgh) for the employer.
Reported by: Colin Beresford , Barrister
© 2016. The Incorporated Council of Law Reporting for England and Wales.