The remedy for a successful unfair dismissal claim is usually compensation, but employment tribunals do have alternative remedies available, notably reinstatement and re-engagement. These are awarded in less than 1 per cent of cases, and are often overlooked, but they can be significantly more advantageous for a claimant from a financial perspective and much more of a management headache for employers.
The recent case of McBride v Scottish Police Authority  is a reminder of the circumstances in which a reinstatement order can be made. The facts are unusual, but the case does indicate the flexibility that tribunals may adopt when looking at the role to which the employee is returning and a reminder of the problems this may cause.
A reinstatement order requires the employer to re-employ the dismissed employee in his or her previous job. The employees must be treated in all respects as if they hadn’t been dismissed, so they will be employed on identical terms, their continuity of employment remains intact, and they will receive compensation from the employer for the period of time between their dismissal and reinstatement. Re-engagement is similar, but instead of returning to the same job, employees return to a comparable or suitable role.
McBride worked for the Scottish Criminal Records Office as a fingerprint specialist. Following a murder enquiry in 1997, and intense media scrutiny and criticism of the fingerprint services as a result of disputed fingerprint evidence, McBride and three other officers were suspended in 2000. Their suspensions were lifted in 2002, but they returned to restricted duties which prevented them from giving evidence in court and signing reports for the purposes of legal proceedings. Given only 3.6 per cent of cases required a signed report and 0.8 per cent required court evidence, these restrictions did not affect McBride’s day-to-day role significantly.
In 2007 the fingerprint service was integrated into the newly-established Scottish Police Services Authority (now the Scottish Police Authority). McBride transferred to the authority but shortly afterwards was dismissed, supposedly because there were no suitable redeployment opportunities for her in the new organisation.
She successfully claimed unfair dismissal, and the tribunal ordered that she should be reinstated to the “position of fingerprint officer and treated in all respects as if she had not been dismissed”.
EAT and Court of Session
The police authority appealed the decision. The key issue was whether the tribunal had made a mistake in ordering reinstatement on these terms – the employer argued that this was not the role from which McBride had been dismissed. The EAT upheld the appeal on the grounds that the tribunal’s judgment was ‘perverse’, and McBride appealed.
The case then went to the Court of Session (Scotland’s Court of Appeal) which decided that the tribunal had made a mistake by ordering the authority to employ McBride on altered contractual terms.
The Supreme Court upheld McBride’s appeal, and confirmed that the tribunal was not seeking to limit her contract in the reinstatement by excluding the restricted duties aspect from her job description.
A tribunal is under a legal duty to explain to claimants that they can ask for reinstatement or re-engagement. If they wish to do so, the tribunal will exercise its discretion, taking into account the claimant’s wishes, the practicality of the employer being able to comply with the order and whether such an order would be just if the claimant contributed to his or her dismissal.
An employer having taken on a permanent replacement for the dismissed employee will not necessarily make re-instatement impracticable from the tribunal’s viewpoint. Employers can refuse to comply with a reinstatement or re-engagement order, but the tribunal can then make an additional award of between 26 and 52 weeks’ salary, capped at the statutory limit (currently £479 per week).
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