In 1997 there was intense media interest and criticism of the Scottish fingerprint service as a result of disputed identification evidence by four officers. Years later, when one of the officers was unfairly dismissed, the claim went as far as the Supreme Court. Lloyd Clarke explores the case.
Ms. McBride was employed as a fingerprint officer in the Scottish Criminal Records Office (SCRO), where she worked from 1984 onwards.
In 1997, 51-year-old Marion Ross of Kilmarnock, Scotland was found murdered in her home, with suspicion quickly falling on a handyman named David Asbury.
Fingerprints were taken from the scene, including a controversial print that came from neither victim or perpetrator.
This print was identified by Ms. McBride and three colleagues as being from Detective Constable Shirley McKie, who denied ever being at the scene of the crime.
Unfortunately for DC. McKie, her claims fell on deaf ears and she was charged with perjury for giving evidence at Mr. Asbury’s trial that she had never been to the crime scene.
During DC McKie’s trial differences of opinion emerged about the fingerprint identification and, after experts intervened, it was discovered that the SCRO had misidentified the print. It was not DC McKie’s and she was acquitted.
Following the murder enquiry, there was intense media interest and criticism of the fingerprint service as the result of disputed identification evidence by four fingerprint officers, including Ms. McBride.
Ms. McBride was suspended from her role while an investigation took place.
The investigation concluded that the experts had not been guilty of any malicious wrongdoing and it was recommended that they return to work without any disciplinary action being taken.
However, on her return to work, Ms. McBride found that she had been placed on restricted duties. She was no longer allowed to countersign fingerprint identifications or attend court to provide evidence.
Several years later, the fingerprint service was transferred into a new Scottish Police Services Authority (SPSA). Ms. McBride’s employer believed that the continued employment of experts involved in the high-profile McKie case would be damaging to the new body’s reputation.
It would not countenance a return by Ms. McBride to court-going duties, but neither was it prepared to allow her to continue working on restricted duties.
McBride was given the options of redeployment, a severance package or dismissal.
She argued that she should remain in post and be permitted to return to full duties. However, her employment was terminated on 1 May 2007.
After her internal appeal was unsuccessful, Ms. McBride presented an unfair dismissal claim in 2009. The Employment Tribunal held that Ms. McBride had been unfairly dismissed.
In some cases, if an individual is unfairly dismissed, a Tribunal can order reinstatement (to the employee’s former role), which is what happened in this instance.
The Tribunal concluded that it would be practicable for the SPSA to reinstate Ms. McBride to the job that she had done on restricted duties for several years, noting also that there were other examples of fingerprint officers who did not carry out court-going duties. The Tribunal also found that it was just for a reinstatement order to be made because Ms. McBride’s conduct had not contributed to her dismissal. The Tribunal ordered:
‘The Claimant shall be reinstated by the SPSA to the position of Fingerprint Officer and treated in all respects as if she had not been dismissed’.
The SPSA accepted the finding of unfair dismissal, but appealed the reinstatement order.
The Employment Appeal Tribunal found the Tribunal’s decision to be incorrect, given the background of considerable conflict.
It also doubted the basis on which the Tribunal had ordered reinstatement, when in fact it was ordering that Ms Mcbride be employed on a more limited basis than was specified in her contract of employment.
McBride went then to the Inner House of the Court of Session. She appealed, arguing that reinstatement meant returning a person to the job they were doing as a matter of fact immediately prior to dismissal.
The SPSA’s position was that reinstatement required a return to an individual’s full contractual terms and conditions.
The Inner House agreed with the SPSA: as the job of non-court-going expert did not exist contractually, she could not be re-instated to that role.
McBride continued on and appealed to the Supreme Court, arguing that the reinstatement order should stand as the Tribunal had sought to place her in the same contractual relationship as she was in before her dismissal.
The employer (now the Scottish Police Authority) argued that the Tribunal’s reinstatement order was invalid as it had sought to alter the terms of the employment contract.
The Supreme Court unanimously allowed Mcbride’s appeal. It stressed that an Employment Tribunal cannot order reinstatement in terms which alter the contractual terms of employment.
However, it found that the Tribunal’s order in this case did not impose a contractual limitation that removed the restricted duties from Ms. McBride’s job description, but recognised a practical limitation to the scope of her work caused by circumstances beyond her, and her employer’s, control.
The Supreme Court commented that, in a reinstatement order, whilst terms and conditions of employment must be reinstated, and rights and privileges (such as seniority and pension rights) must be restored, reinstatement does not require the recreation of the precise factual conditions at the point of dismissal.
So, for example, an employer could give an employee a new line manager following reinstatement if this was desirable to avoid further conflict.
The Supreme Court remitted the case to the original Tribunal (or as close to that as possible) to reconsider, in light of the passage of time, the amount the employer should pay Ms. McBride in respect of lost benefits such as arrears of pay.
Ultimately, a Tribunal cannot force an employer to comply with a reinstatement order and take a former employee back into the workforce. However, if an employer fails to comply, a Tribunal will order it to pay unfair dismissal compensation to the former employee.
Reinstatement orders in unfair dismissal cases are made in fewer than 1% of cases – an employer being faced with reinstating an employee who has not worked for some nine years to her former job, is exceptional and highly challenging.
However, the case provides helpful clarification from the Supreme Court on a discrete point of law in relation to reinstatement orders. It held that a reinstatement order can be valid even if it involves the employee undertaking restricted duties on her return to work, provided her contractual terms are the same.
For more information or advice please contact Lloyd Clarke on 01206 239761.