McKie case fingerprint officer wins reinstatement appeal

One of the fingerprint officers whose work formed the basis of the failed prosecution for perjury of the former police detective Shirley McKie, has won an appeal to the UK Supreme Court in her claim for reinstatement to her former position.

Five judges unanimously ruled that the employment tribunal which originally considered the unfair dismissal claim by Fiona McBride had adopted a proper approach when it upheld her claim and ordered that she be "reinstated by the respondent to the position of fingerprint officer and treated in all respects as if she had not been dismissed”.

The McKie case concerned the disputed identification of a fingerprint in a murder inquiry in 1997, which resulted in the trial and conviction (later quashed) of David Asbury. A fingerprint at the murder scene was identified by four experts from the Scottish Criminal Records Office (“SCRO”) fingerprint bureau as belonging to Detective Constable McKie. The experts’ duties included signing fingerprint reports for use in criminal trials and giving evidence at trial. As a result of the identification, DC McKie was charged with perjury for giving evidence at Mr Asbury’s trial that she had never been to the crime scene. She was acquitted after differences of opinion emerged at her trial about the fingerprint identification. The episode resulted in a public scandal and an eventual award of £750,000 compensation to DC McKie.

A subsequent investigation cleared Ms McBride and her colleagues of any malicious wrongdoing. Having been suspended, they were allowed to resume work but not to sign joint reports or give evidence in court, due to concerns that any such evidence would be undermined by cross-examination on matters relating to the scandal.

When the fingerprint service was integrated into the Scottish Police Services Authority (“SPSA”) in 2007, the person in charge, David Mulhern, did not want the four experts to transfer to the SPSA but said redeployment was an option. Ms McBride still wished first to discuss reinstatement to unrestricted duties. She was dismissed and claimed for unfair dismissal.

Upholding her claim, the employment tribunal held that it would be practicable for the SPSA “to reinstate the claimant to the role of (non-court going) fingerprint expert”. The Employment Appeal Tribunal held that the decision that it was practicable for the SPSA to comply with an order for reinstatement was perverse. On Ms McBride’s appeal, the Inner House rejected that view but held that the tribunal had erred in law by ordering the SPSA to employ Ms McBride on altered contractual terms.

Giving judgment in the Supreme Court, however, Lord Hodge, with whom Lady Hale, Lord Clarke, Lord Wilson and Lord Reed agreed, stated that the tribunal’s order for reinstatement, viewed alone was not open to criticism, as it reflected the definition of such orders in terms of s 114(1) of the Employment Rights Act 1996. The question was whether the context in which the order was made, and the tribunal’s reasoning in support of the order, should give rise to a different interpretation of the order.

Lord Hodge said it should not. The tribunal was not seeking to impose a contractual limitation in the reinstatement order, but was recognising a practical limitation on the scope of Ms McBride's work caused by circumstances beyond her and her employer’s control.

Four factors supported this conclusion:

1. The tribunal was aware both of Ms McBride’s terms of employment and of the status quo that for several years she had been actively employed as a fingerprint officer but had not been asked or allowed to sign reports or give evidence in court.
2. It was aware that Ms McBride wanted to perform the excluded duties but held that the SPSA’s decision that she could not return to those duties was reasonable.
3. It rejected the idea that continuing in a non-court going role amounted to alternative employment. It preferred the evidence that Ms McBride had still made a valuable contribution in the years in which her duties had been restricted.
4. The tribunal’s references to Ms McBride being reinstated to a “non-court going fingerprint officer role” suggested that it was considering the practical context of the reinstatement rather than an alteration of the terms of employment, and did not amount to an order that she be allowed to resume the excluded duties.

He further held that in view of trhe findings of fact, the employers could not have been ruled to have been in fundamental breach of Ms McBride's employment contract by refusing to allow her to perform the excluded duties. 

The case was remitted to the original tribunal, or to a tribunal which included those members who were still in office, to consider in what respects it should vary its order for compensation in view of the time that had passed since the order.

Click here to view the judgment.