In practice, although reinstatement (and reengagement) orders are theoretically the first remedy that should be considered by a tribunal, they are ordered in less than 1% of cases. That being said, in the minority of cases in which they are considered, unlike re-engagement, a tribunal has no power to order reinstatement on terms which alter the contractual terms of employment. However, the tribunal can recognise external factors beyond the employer and employee’s control which limit the employee’s scope of work says the Supreme Court in the recent case of McBride v Scottish Police Authority.
The Claimant in this case was a fingerprint expert employed by the Scottish police authority who had given evidence in court based on incorrect findings. After an inquiry concluded that the mistake she made was not due to misconduct or capability, the Claimant was allowed to return to work but on restricted duties which, excluded her from giving evidence in court as the reliability of her evidence would likely be called into question. She was later dismissed and successfully brought a claim for unfair dismissal. However, unlike many other Claimants, she requested to be reinstated (rather than re-engaged) to her role as Fingerprint Officer. The tribunal, as per the Claimants’ request, ordered reinstatement on the basis that she would not be signing reports or attending court to give evidence (i.e. reinstated to a non-court going fingerprint officer role). The employer argued that this was a variation of her contractual duties and therefore not permitted under the rules of reinstatement. Following various appeals, the Supreme Court held that the tribunal was not imposing contractual limitations on the reinstatement order by removing certain duties, but simply recognising practical limitations: if prosecutors would not use the Claimant in court there was nothing her employer could do to give her such duties. The Claimant had worked for several years as a Fingerprint Officer without being asked to sign reports or give evidence in court and therefore, in the Supreme Court’s view, the reinstatement order simply returned her to that status quo. There was no evidence that such restriction would be in breach of contract.
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Although reinstatement is rarely requested following a dismissal, this case clearly widens the net and employers could, in theory, find themselves reinstating an employee with reduced duties.
