Search

How can we help?

Icon

Ordering reinstatement on reduced duties can be permitted

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.

Monica Atwal

Managing Partner

View profile

+44 118 960 4605

Chambers and Partners

The Clarkslegal team are commercial and good to work with. They get what our business needs and tell me what I need to hear.

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.

Employmentbuddy.com 

About this article

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

Monica Atwal

Managing Partner

View profile

+44 118 960 4605

About this article

Read, listen and watch our latest insights

Pub
  • 22 September 2023
  • Employment

Talking Employment Law: New family friendly rights

In this first podcast in the ‘Talking Employment Law’ series, Lucy Densham Brown and Rebecca Dowle, members of the employment team summarise some of the big new family-friendly Bills that are working their way through parliament.

art
  • 20 September 2023
  • Commercial Real Estate

Commercial buyers beware of residential Stamp Duty Land Tax

This article discusses a recent case in which a property buyer calculated the Stamp Duty Land Tax due on the purchase at a lower rate, due to the mixed-use purpose of the property.

art
  • 19 September 2023
  • Privacy and Data Protection

Organisations’ use of social media: Data protection

Social media applications (or commonly known as ‘apps’) are being developed all the time and we are constantly being introduced to new social media platforms, some of which take almost no time to gain huge popularity.

art
  • 14 September 2023
  • Immigration

Entrepreneurial Dreams: What is the Innovator Founder Visa?

In an era defined by innovation and entrepreneurship, the United Kingdom has made a substantial effort towards fostering its reputation as a global hub for start-ups and innovators. The introduction of the UK’s ‘Innovator Founder’ route has marked a pivotal moment in the country’s immigration policy.

art
  • 11 September 2023
  • Corporate and M&A

Changes to the tax treatment of Employee Ownership Trusts

The government published a consultation on 18 July 2023 seeking the public’s views on its proposals to reform the tax treatment of Employee Ownership Trusts and Employee Benefit Trusts. Parties are invited to express their opinions via email via the government website until the consultation closes on 25 September 2023.

art
  • 08 September 2023
  • Immigration

Navigating the Latest Immigration Rules for Overstayers in the UK: A Comprehensive Guide for 2023

Staying beyond the expiration of your UK visa is a serious matter that, in most cases, can result in significant and long-lasting repercussions.