Appeal No. UKEATS/0020/09/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 30 October  2009

Before
THE HONOURABLE LADY SMITH
MISS S. AYRE FIPM FBIM
MRS A. E. HIBBERD

SCOTTISH POLICE SERVICES AUTHORITY	APPELLANT

MS FIONA McBRIDE	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellants	MS A. JONES
(Solicitor)
Maclay Murray & Spens Solicitors 
Quartermile One
15 Lauriston Place
Edinburgh
EH3 9EP	
For the Respondent	MR D OGILVIE
(Solicitor) 
Turcan Connell Solicitors
Princes Exchange
1 Earl Grey Street
Edinburgh
EH3 9EE	

SUMMARY
UNFAIR DISMISSAL – Reinstatement/Reingagement

Fingerprint officer found to have been unfairly dismissed.  Tribunal ordered reinstatement to role of non-court going fingerprint officer.  Appeal against order for reinstatement upheld and case remitted to a freshly constituted Tribunal to consider remedy including whether or not the dismissal was caused or contributed to by any action of the claimant and, if so, whether any compensation awarded should be reduced (Employment Rights Act 1996 s. 23(6)).  

THE HONOURABLE LADY SMITH

INTRODUCTION
1.	In a judgment registered on 26 January 2009, an Employment Tribunal sitting in Glasgow, Employment Judge L Crone, found that the claimant had been unfairly dismissed.  They directed that she be reinstated.  The employer’s appeal does not seek to contest the finding of unfair dismissal; their appeal is confined to contesting the order for reinstatement.  

2.	We will continue to refer to parties as claimant and respondents.  

3.	The claimant was represented by Mr. Ogilvie, Solicitor, before the Tribunal and before us.  The respondents were represented by Ms A Jones, Solicitor, before the Tribunal and before us.  

Background
4.	The claimant was employed by Strathclyde Joint Police Board, working in the Scottish Criminal Records Office (SCRO) as a fingerprint officer from 29 October 1984 until her dismissal on 1 May 2007.  The first three items of her job description were:  

“1. 	To assess, input, search and verify identifications through use of fingerprint collections, AFT systems and Livescan where appropriate.  
  2. 	To prepare court cases and give evidence as required.  
  3. 	To check and sign identifications prepared by other Fingerprint Officers and trainee Fingerprint Officers.”  

5.	In January 1997 a woman named Marion Ross was murdered in her home in Glasgow.  The scene of the crime was examined for fingerprints and “lifts” were taken.  A fingerprint mark, known as Y7 was identified by the claimant and three other fingerprint officers as belonging to a police officer, Shirley McKie.  She denied having been within the house.  Y7 was checked again.  The claimant and the three other fingerprint officers, together with two SCRO officers at managerial level, all checked it and confirmed that it was the fingerprint of Shirley McKie.  A joint report confirming that the print was Ms McKie’s was signed by the four fingerprint officers.  

6.	David Asbury was charged with the murder of Marion Ross and tried.  At his trial, Ms McKie gave evidence and denied having been present within the house where the murder took place.  David Asbury was convicted.  Ms McKie was subsequently charged with perjury and tried.  After trial she was acquitted.  She subsequently raised an action of damages for personal injury against a number of organisations which was ultimately settled by the Scottish Executive, in 2006, for £750,000.  

7.	Meanwhile, a number of investigations into the work of the claimant and her colleagues regarding the identification of Y7 took place.  There were further investigations into the general workings of the SCRO.  The matter has inspired much media interest.  In February 2006, Cathy Jamieson, MSP, then Justice Minister, instructed Assistant Chief Constable David Mulhern to carry out a review of the fingerprint service and produce an action plan to “develop the Scottish Fingerprint Service as an integrated part of the new Scottish Forensic Science Service from April 2007”.  

8.	The reference in Mr Mulhern’s remit to a new Scottish Forensic Science Service was to the governmental intention to create a new statutory body to be known as the “Scottish Police Services Authority” (ie. the respondents) which would bring together the work of the Scottish Police College, the SCRO, Scottish Police Information Strategy, the Scottish Crime and Drug Enforcement Agency and the Scottish Forensic Science Service.  In the period between September 2005 and 1 April 2007 (the date when the respondents came into being) Mr Mulhern carried out a role which was referred to as “interim Chief Executive of the Scottish Police Services Authority”.  Given that the respondents did not exist until 1 April 2007, properly understood, it appears that his role was to head up the necessary work involved in the transition from forensic science services in Scotland being provided through the work of five separate bodies to their being provided by a single body.  Mr Mulhern’s review remit was issued against a background of there having been considerable criticism of the fingerprint service in the wake of the Shirley McKie saga and there having been an unfavourable report from Her Majesty’s Inspector of Constabulary. The Tribunal’s findings make it plain that he was determined to establish a new organisation of high quality which would secure and retain public confidence. Reputation was of high importance. That is not, in the circumstances, at all surprising.

9.	The McKie saga had had a detrimental impact on staff morale.  There was and remains disagreement between the claimant and her colleagues and other fingerprint experts at both local and international level as to the identification of Y7.  As at the present date a judicial enquiry under the chairmanship of Sir Anthony Campbell (“the Fingerprint Enquiry”) is still taking place.  

10.	The claimant and her three colleagues were suspended from duty on 3 August 2000.  Their suspension was lifted on 20 May 2002 but only so as to allow them to return to restricted duties.  The Tribunal’s judgment refers to the claimant’s role being a “non-court going” role but we understood the nature of the restriction to have been such as, unsurprisingly, extended beyond the matter of giving evidence in court to all work involved in preparing fingerprint evidence for court.  It appears, accordingly, that the claimant was thereafter prevented from carrying out the duties involved in the first three aspects of her job description to any material extent.  

11.	Against the foregoing background Mr Mulhern produced an action plan in April 2006 which stated:  

“The misidentification of a fingerprint as Shirley McKie’s in 1997 has understandably caused considerable public concern ever since about the quality of the work done by fingerprint experts in Scotland – an issue which is central to maintaining public confidence in the Scottish criminal justice system.”  

He stated that the new organisation’s objective was:  

“To ensure that the Scottish Fingerprint Service adheres to the best possible international standards and is a recognised centre of excellence in its field.”  

The claimant and her colleagues objected to Mr Mulhern using the expression “misidentification”.  They did not and do not accept that they made any mistake in their identification of Y7 as being that of Shirley McKie.  

12.	In May 2006 a Parliamentary Inquiry heard evidence.  The claimant gave evidence which included the following:  

“I was interviewed by a specialist solicitor from the Scottish Executive and I was told ‘It’s not a terrible problem – we are attacked in the press quite often and it all blows over and you just get on with your job’.  I had to point out that I could not get on with my job because of what was happening and that I was never going to get back into court.  I think that, at one point, Mr McKie said that he was going to ensure that none of us got back into court.  Of course, if we were to be accepted by the Crown, the usual independents would rear their heads, so I suppose that the Crown would not take a risk with us.  I pointed out to the solicitor that I understood where she was coming from but that, as a result of the case, we could not do our job.”  

13.	In September 2006, Lord Boyd of Duncansby, who was then Lord Advocate, also gave evidence.  On being asked whether the Crown intended to call the fingerprint officers involved in the Shirley McKie case as expert witnesses in future, he said:  

“The matter is under discussion, but it is fair to say that there are considerable difficulties in that respect.  Frankly, the situation has not been helped by the unauthorised disclosure of Mr McKay’s report.  I have enormous sympathy with the SCRO officers, some of whom are very experienced and have given very good service.  However, my job is to ensure that criminal trials are properly conducted and that people have confidence in our criminal justice system.  I have a concern that must be addressed.  The position of the officers is now so notorious – I do not mean that in a pejorative sense, but the views that have been taken on them are well known – but if any of them were called as a witness, the trial concerned might well become a trial of the officer, rather than of the accused.  I want to avoid that.”  

On being pressed to confirm that the Crown would not call the officers as expert witnesses the Lord Advocate said:  

“I would need to be strongly convinced that the issues could be dealt with appropriately at the trial.  At the moment, I cannot say that it would be appropriate for the officers to be called.  … 
On a human level, one can have every sympathy with the position in which the officers find themselves.  Some will say that it was of their own making.  Nevertheless, on a human level it is a matter of regret.  I have a wider responsibility to ensure that trials in this country focus on the real issue, which is the guilt or innocence of the accused – not whether or not an SCRO officer has, in the past, acted in a way that was malicious or criminal, or something of that nature.”  

By that time, Mr Mulhern had reached the view that the claimant and her colleagues could not carry on working as fingerprint experts.  In September 2006, Mr Mulhern appeared on the television programme “Newsnight” and repeated his view that their identification of Y7 was a “misidentification”.  A fingerprint expert from the Aberdeen Office expressed the same opinion on the “Panorama” television programme.  Those statements caused much disquiet.  A tense and confrontational staff meeting took place the day after Mr Mulhern’s appearance on Newsnight; it was attended by both Mr Mulhern and the claimant.  Mr Mulhern’s interest was in discussing the future of the service.  A number of members of staff sought to focus on the ongoing enquiries into the McKie case and what had happened in the past.  Mr Mulhern closed the meeting.  The claimant subsequently raised a grievance which included complaints about Mr Mulhern’s conduct at that meeting.  

14.	From September onwards Mr Mulhern had a series of meetings with Unison personnel who were representing all six fingerprint experts.  The purpose of the meetings was to discuss their future.  They resulted in agreement being reached in relation to five of them but not the claimant.  The result was that they accepted that they would not transfer into the respondents’ employment when it came into existence on 1 April 2007.  

15.	A number of meetings took place with the claimant thereafter for the purpose of discussing her continued employment.  The respondents sought to discuss redeployment with her, a matter which had been raised with Unison previously.  She refused to discuss redeployment until she had what she regarded as satisfactory answers to three questions namely whose decision it was to refuse to allow her to return to full duties, when  the decision was made and why it was made.  Given that the claimant appears to have been well aware of what was said by the Lord Advocate to the Parliamentary Inquiry in September 2006 we fail to understand how it is that she had any difficulty in understanding why it was that she was not to return to full duties.  As an experienced fingerprint expert who had given evidence in the past, she must have been well aware of the ways in which her evidence could have been subject to challenge by reference to the “McKie saga”, whatever the ultimate outcome of the enquiries into it.  Further, no decision on the matter could be made by the respondents until they came into existence.  Only then would there be a corporate body which, through its ten members, in implement of their duty to ensure that the authority ran efficiently and effectively, would be able to address the issue (Police, Public Order and Criminal Justice (Scotland) Act 2006).  

16.	The Tribunal found that the claimant’s three questions were answered by 27 April 2007.  They also indicate that the questions were not correctly answered but we have to say, having read the correspondence prior to 27 April 2007 and the letter to the claimant from Eileen Masson, the respondents’ HR manager dated 27 April 2007, we have difficulty in understanding the Tribunal’s position on this matter.  It may be that what they are referring to is that so far as Mr Mulhern was concerned, his own view even prior to September 2006 was that it would simply not be appropriate for the new body to continue to employ the claimant as a fingerprint officer; he did not consider it would be appropriate for her to return to full duties and nor did he consider it was appropriate for the new authority to employ her on the basis that she was only carrying out part of her duties.  That, however, fails to have regard to the fact that, at that point, the respondents did not exist.  The claimant’s employment subsequently did transfer to the respondents and it was for them to decide what to do about it.  Before leaving the matter, we should also comment that we cannot help but observe that the correspondence regarding the claimant’s three questions and the way in which they were discussed at meetings discloses marked tension between not just the claimant and David Mulhern but the claimant and Eileen Masson.  Indeed, at one point, where she refers to “duplicitous misinterpretation of the facts” (e-mail from the claimant to Eileen Masson dated 1 May 2007) that appears to be an indictment of the respondents as a whole.  It is also notable that even after the date by which, on the Tribunal’s findings, the claimant had her answers (27 April 2007) she was not prepared to discuss redeployment.  

17.	The letter of 27 April 2007 from Eileen Masson to the claimant advised her that maintaining the status quo (ie. with the claimant employed on the “twelve point” job description of which she was not carrying out three aspects of the role) was not an option.  It was necessary to take a final decision relating to her future employment, including the potential for dismissal and to that end she was invited to a meeting on 1 May 2007.  She attended the meeting.  The claimant’s position was that she could not consider redeployment until she had answers to her three questions and until other possibilities had been investigated including taking opinions from Scottish Ministers, the Justice 1 Committee, the new Lord Advocate, the previous Lord Advocate and the Faculty of Advocates.  The claimant had, however, by that time, had answers to her three questions. The other matters referred to were new.  The respondents’ Director of Forensic Services, Tom Nelson, chaired the meeting on 1 May and subsequently wrote to the claimant by letter of the same date.  He informed her that her employment would terminate forthwith because of her inability to carry out the full range of her duties and the failure to identify any suitable redeployment options for her.  

18.	The claimant then spoke to the press.  A report in The Herald dated 3 May 2007 stated that the claimant had been:  

“… told to leave on Tuesday after refusing to accept a move to a different post for less than half her salary.”  

and that the claimant had said:  

“My colleagues were threatened and frightened out of their jobs even though they had no reason nor right to get rid of us.”  

She was also reported as having said:  

“We had been exonerated by the Justice One Committee report and have been working since the McKie case, yet they decided to get rid of us now for political reasons.”  

Another report in The Herald of the same date indicated that Unison had been acting on behalf of all the fingerprint experts and that David Mulhern had made an offer of retirement, redundancy or redeployment to which the union said:  

“… this amounted to harassment.  Ms McBride says Mr Mulhern denied the union claims.  As a result she filed an official complaint against him – a factor she believes may have played a part in her subsequent dismissal.”  

The report included, further:  

“The Justice 1 inquiry found ‘fundamental weakneses’ in the service which had to be addressed.  The management of the SCRO, Her Majesty’s Inspectorate of the Constabulary, former Lord Advocate Lord Boyd and by implication successive Justice Ministers will criticise.  
What the report failed to resolve was what really happened.  Ms McKie and a team of experts continued to claim the print was not hers, while experts at SCRO maintained they were telling the truth.”  

The report also states the claimant as having said, of Mr Mulhern:  

“When he met with us he told us it did not matter whether we could prove that Shirley McKie had entered the house or not, and he said the conclusions of the Justice One Committee Report would make no difference.  He had clearly already made up his mind.  
Because he had not been able to bully me out of the job he terminated my contract.”  

19.	The claimant appealed against her dismissal.  The appeal was heard on 29 May 2007 by a panel comprised by the respondents’ convenor, an HR committee member, an HR manager and the Director of Forensic Services.  The claimant continued to insist she had not had answers to her three questions.  Her appeal was unsuccessful and the decision was intimated to her by letter from the convenor dated 31 May 2007.  The letter included the following:  

“The primary basis which you state as a ground for appeal is that the reasons for redeployment were never made clear to you, despite making repeated requests for that information. Throughout the process there is written supporting documentation that demonstrates that the reasons for redeployment were provided to you, and your questions were answered.  

You further state that at no time in the past has the organisation confirmed to you that you would be unable to return to court going duties in the future, and you therefore found the initial meeting with the SPSA, concerning your role, a surprise.  Whilst there was never any confirmation in writing, to you, from Scottish Criminal Records Office, or Strathclyde Joint Police Board as its legal employer, removing you permanently from court going duties it is accepted by the panel that on a sustained basis it was not considered appropriate for you to give evidence in Court, or to complete joint reports.  It was therefore the prevailing situation under which your employment transferred to the SPSA, and had been in effect since August 2000.”  

20.	In short, the respondents’ position was that the claimant could not return to the full complement of duties comprised in the job of fingerprint officer.  However, the claimant’s position was, all along, that she sought a return to full duties and did not accept that it was not appropriate for her to do so.  Indeed, as was ultimately confirmed by Mr Ogilvie before us, whilst his submission to the Tribunal was that the claimant wished to be returned to the position she was in immediately before her dismissal he also said to the tribunal that her ultimate goal and aspiration was to resume the full duties of the post of fingerprint officer.  

The Tribunal’s Judgment
21.	The Tribunal found the claimant was unfairly dismissed and we do not require, for the purposes of this judgment, to rehearse the reasons for that finding.  The issue for us is one of remedy.  The Tribunal ordered that the claimant be reinstated to the role of what the Tribunal refer to as “non-court hearing” fingerprint expert.  That was against the background of the Tribunal accepting that the respondents’ decision that the claimant could not return to court going duties was a reasonable one in the light of the views of the Lord Advocate expressed at the Parliamentary Inquiry in September 2006 (see paragraph 297).  In deciding to order reinstatement, the Tribunal considered whether reinstatement was practicable or not.  So far as the articles in the press were concerned, at paragraph 368 they state:  

“We did not consider the articles referred to above and when read in their entirety and in the context of the case, demonstrated a break down in the trust and confidence between the claimant and Mr Mulhern.  We accepted the claimant had, at various times throughout the period of these events, challenged Mr Mulhern about his authority to speak on behalf of the fingerprint service in circumstances where he was not the employer, and about his conclusion the identification had been a misidentification.  The claimant was not, however, alone in these challenges.  The circumstances of this case are wholly unusually and have spanned a very large number of years.  We acknowledge that positions on both sides would have become entrenched to a certain degree simply through the passage of time.”  

At paragraph 370, the Tribunal refer to the claimant’s belief that she had been lied to throughout these proceedings and commented that she was right in that belief.  At paragraph 371 they refer to the “degree of animus between the claimant and Mr Mulhern”.  At paragraph 372 they state that the fact that the respondents were large and employed over 1,800 employees also had to be put in the balance.  They state:  

“Mr Mulhern, as Chief Executive of the respondent, would have no day to day contact with the claimant.”  

At paragraph 373, the Tribunal observed:  

“Ms Jones submitted that returning the claimant to work would lead to the claimant seeking vindication in regards her identification of mark Y7.  We considered our conclusion that the decision of the respondent that the claimant could not return to court going duties was a reasonable decision, will move this matter forward for both the claimant and the respondents.  We would also add that throughout the claimant’s evidence she made no reference to being vindicated in this matter.  The thrust of the claimant’s position was about returning to court going duties, rather than vindication.  That said, the claimant believed, and continues to believe, her identification was correct.”  

At paragraph 374, the Tribunal reject Ms Jones’ submission that the claimant was, in effect, asking for a job to be created for her.  They did so on the basis that they were reinstating her to “the job” that she had carried out for the previous eight years and also that there were other examples where fingerprint experts had been removed from Court going duties but continued to fulfil a role.  The latter was a reference to temporary unavoidable absences due to sickness or leave, not to a standard practice.  We note, in passing, that the claimant had not, on any view, carried out the restricted duties for eight years.  She had been off work for almost two years within that eight year period.

22.	Finally, the Tribunal considered whether it would be just and equitable to make an order for reinstatement and for that purpose, asked themselves whether the claimant caused or contributed to any extent to her own dismissal. They found that she did not do so.  

The appeal
23.	In a very clear and well structured submission, Ms Jones referred to the underlying facts of the case and submitted that the Tribunal had erred in law in concluding that it would be practicable for the respondents to reinstate the claimant to the role of “non court going” fingerprint expert.  The Tribunal had misinterpreted and misapplied s. 116(1) of the Employment Rights Act 1996.  The Tribunal’s findings regarding practicability were perverse.  Secondly, she submitted that the Tribunal’s findings in relation to contribution also amounted to an error of law.  

24.	So far as reinstatement was concerned, it was accepted that a Tribunal has a wide discretion but Ms Jones referred us to the observations of HHJ Peter Clark in Central and North West London NHS Foundation Trust v Abimbola UKEAT/0542/08/LA that only about three percent of successful unfair dismissal claims result in an order for re-employment or reinstatement (paragraph 14).  Ms Jones also accepted that each case turned very much on its own facts and circumstances.  However, as discussed in some of the authorities, practicable meant more than just “possible”: see, for instance, Coleman and Stephenson v Magnet Joinery Ltd [1974] IRLR 343.  Nor were the reinstatement provisions designed to enable claimants to re-establish or vindicate their reputation:  Nothman v London Borough of Barnet [1980] IRLR 65.  Nor was it appropriate for the Tribunal to use an order for reinstatement so as to direct an employer to, in effect, change its policy:  London Borough of Redbridge v Fishman [1978] IRLR 69.  Also, the Tribunal required to confine itself to considering matters by reference to the actual facts which had occurred not by considering future possible events:  Timex Corporation v Thomson [1981] IRLR 522.  Further, it was relevant to consider whether the employee would be sufficiently employed:  Tayside Regional Council v McIntosh [1982] IRLR 272 and also to have regard to the commercial judgment of the employer:  Port of London Authority v Payne [1994] IRLR 9.  

25.	The facts of the present case demonstrated, having regard to the authorities, that it was simply not practicable to reinstate the claimant and certainly not practicable to reinstate her to the restricted role proposed by the Tribunal.  The Tribunal had failed to have regard to the claimant’s position vis à vis the respondents in the period April/May 2007, failed to have proper regard to the facts which pointed to continuing conflict being inevitable, failed to have regard to the claimant’s determination to seek to return to full duties, failed to take account of the fact that the claimant had previously stated she did not want to continue in the restricted role, failed to give proper consideration to what exactly the claimant was going to do in the role that they were reinstating her to, failed to have proper regard to the negative and damaging aspects of the comments made by the claimant to the press following her dismissal, failed to consider the likely effect on the respondents’ organisation if the claimant returned to their employment and failed to have regard to the fact that the claimant’s antipathy was not confined to Mr Mulhern but extended to the respondents as a whole.  The Tribunal’s finding that the claimant was entrenched in her position was not capable of reconciliation with their expression of hope that matters would move forward for both parties once they had made their order for reinstatement, particularly in circumstances where the claimant believed and continued to believe that her identification of Y7 was correct.  

26.	In all these circumstances, the Tribunal’s decision was perverse.  

27.	So far as contribution was concerned, relying on the same facts, Ms Jones submitted that the claimant had plainly contributed to her own dismissal.  She refused to engage in any discussion on the question of redeployment.  The Tribunal’s decision that there was no contribution on her part was perverse.  Her conduct fell into the “bloody minded” category referred to in the case of Nelson v BBC (No.2) [1979] IRLR 346.  In particular, she continued insisting that she required answers to her three questions beyond the point at which the Tribunal had accepted that she had received answers.  Ms Jones submitted that the appeal should be allowed and there should be substituted for the Tribunal a finding that it was not practicable to reinstate the claimant and that she had contributed to her dismissal to the extent of 100 per cent, which failing, the matter ought to be remitted to a differently constituted Tribunal to consider the question of contribution and/or compensation.  

28.	In a short submission for the claimant, Mr Ogilvie reminded us that we had not heard the evidence.  We could only look at the Tribunal’s findings in fact.  Mr Mulhern had determined on his attitude to the claimant’s employment in 2006.  There was a failure to make full enquiry into what the claimant had been doing since her duties were restricted.  There were grounds for the Tribunal to find that it was practicable to reinstate the claimant.  The Tribunal’s decision was that in essence, the whole process for the claimant’s dismissal was a sham.  The claimant was entitled to go forward into the new organisation on the understanding that she would do the same job, even if it was a job she was doing on a temporary basis.  The appeal should be refused, which failing the matter should be remitted to the same Tribunal for consideration of remedy.  

Reinstatement: Employment Rights Act 1996 ss.114 and 116
29.	Where an employee is found to have been unfairly dismissed, a Tribunal may, in appropriate circumstances, make an order for reinstatement.  Section 114 of the 1996 Act provides:  

“(1) An order for reinstatement is an order that the employer shall treat the claimant in all respects as if he had not been dismissed.”  

That means that where reinstatement is ordered, the employee is returned into the same contractual position that she was in prior to dismissal.  In this case, it seems clear that the claimant’s contractual position prior to dismissal was that she was employed by the respondents on the same terms as she had been employed by the Strathclyde Joint Police Board, namely to carry out the job of fingerprint officer involving all twelve points of the job description.  It was never suggested before the Tribunal nor, indeed, before us that the claimant’s contract had been varied so as to remove part of the job.  That is not surprising since the claimant’s object and intent, as noted by the Tribunal, was to return to the “full duties” of the job, an objective which she would have been in no position to advance if in fact part of the duties had been eliminated from it.  

30.	We are not, accordingly, at all clear as to the basis on which the Tribunal felt able to order “reinstatement” where what they were in fact directing was not that the claimant returned to her job in all its respects but that the claimant be, in the future, employed by the respondents on a more limited contract.  That does not, on the face of it, appear to be an order for reinstatement under s. 114(1) and we are conscious of the fact that an issue of competency arises.  In the event we do not require to determine it since, as we will explain, we are satisfied that the appeal was well founded on the grounds argued.  

31.	Section 116(1) provides:  

“In exercising its discretion under section 113 the Tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account – 
(a) whether the complainant wishes to be reinstated, 
(b) whether it is practicable for the employer to comply with an order for reinstatement, and, 
(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.”  

As illustrated by the various authorities to which Ms Jones referred, practicability is not simply a matter of possibility. Practicability involves also looking at whether reinstatement is a practical proposition and that must include considering whether and how it will work. It is crucial that a Tribunal considering reinstatement look carefully at the background facts before reaching a judgment on the issue.  Matters such as a claimant being determined to vindicate her position or past significant tension between claimant and employers are plainly highly relevant.  We would expect it to be in the rarest of cases that a Tribunal would judge it as practicable to reinstate a claimant in such circumstances and if they decided to do so, would expect there to be a clear and cogent explanation of why, notwithstanding the obvious difficulties, they considered that reinstatement would work.  

32.	We do not propose to rehearse the authoritative references on the matter of perversity.  It is sufficient to refer to the case of Yeboah v Crofton [2002] IRLR 634 and remind ourselves that it is a high test the passing of which requires us to be satisfied that no reasonable tribunal could, in the circumstances, have decided as this Tribunal did.  

Discussion and decision
33.	The Employment Tribunal ordered that the claimant be reinstated to a “non-court going” role in circumstances where that was not actually her goal.  Indeed, the Tribunal recognised that, as they put it “the thrust of the claimant’s position was about returning to court going duties” (paragraph 373).  That was her ultimate aim and objective and thus her wishes did not actually coincide with the limitations of the reinstatement order.  That matter was relevant to their consideration of the first issue to which reference is made in s. 116(1) but has not been taken account of by the Tribunal.  

34.	Then, so far as practicability was concerned, as Ms Jones submitted, there were a number of relevant factors.  In particular, it was plain that from the outset of the McKie saga, the claimant had insisted that her identification of Y7 was correct, a position which was not, at any time, supported by her previous employers or by the respondents. We do not accept the Tribunal’s assessment of her position as not being that she sought vindication.  Achieving what she saw as justified vindication was plainly inherent in her determination to return to full duties.  It was, further, plain that much friction and tension had ensued not just between Mr Mulhern and the claimant but between her and others employed by the respondents such as Ms Masson.  It was plain that the claimant was critical of them and also of the respondents in general.  She had voiced that criticism to the media in no uncertain terms and it was publicised in The Herald newspaper.  We cannot accept the Tribunal’s conclusion that, on their findings in fact, the fact that the claimant spoke to the press in the terms reported in The Herald articles were not demonstrative of a breakdown in trust and confidence between the claimant and Mr Mulhern.  Further, they were demonstrative of a breakdown in trust and confidence between the claimant and the respondents in general, as any reasonable tribunal would have concluded.  

We note, further, that the Tribunal describes the consultation process that was engaged in with the claimant as a “sham”;  that shows that they regarded the claimant as having justification for a significant loss of trust and confidence in her employers.  All these factors also had to be viewed in the context of enquiries into the McKie saga not being at an end.  They are not, even yet, at an end.  

35.	Nor can we accept that the Tribunal could reasonably draw the conclusion that once they had affirmed that the respondents’ decision that the claimant could not return to court going duties was a reasonable one, matters would be able to move forward.  On the contrary, matters had been left, at the time of the claimant’s dismissal, with her making further demands for detailed enquiries to be made of a range of persons and bodies as to why she could not return to full duties.  There was no indication in the findings in fact at all that her attitude would alter simply because the Tribunal decided that the respondents’ limitation of her role was a reasonable one. The Tribunal’s hope that that would happen was, we accept, a laudable one but it looked very much like a vain hope in all the circumstances. The clear picture is that returning the claimant to work for the respondents in the limited non court role provided for by the Tribunal would not work.  The claimant and the respondents parted company on her dismissal against a background of considerable conflict and with the claimant entertaining marked distrust of her employers.  That conflict had not been resolved and there was nothing to suggest that the claimant’s mistrust of her employers had lessened.  Far from being practicable, the impression presented was one of the reinstatement envisaged by the Tribunal being liable to have disastrous consequences.  In these circumstances, we are satisfied that the high perversity test is passed in this case and the appeal is well-founded.  

36.	Turning to contribution, we have given careful consideration to whether, in the circumstances, the Tribunal fell into error in their finding that the claimant did not contribute to her own dismissal.  We can fully understand why Ms Jones submitted that they had and have some sympathy for the argument that there is an apparent illogicality in finding that the claimant had all the answers to her questions by 27 April 2007 and yet was not to be criticised for failing to engage in discussions about redeployment thereafter.  However, we have reached the view that it would not be appropriate for us to determine the contribution issue that now arises.  There will require to be a hearing on remedy with a view to ascertaining what monetary award, if any, ought to be made to the claimant. The issue of contribution has not, thus far, been considered under reference to the question of whether or not compensation should be reduced. It will now have to be considered and determined in that context (s. 122(2) and s. 123(6) of the 1996 Act).  That is a task which has not been but will now require to be addressed.  

37.	So far as the question of remit is concerned, we are persuaded that the remit should be to a freshly constituted tribunal.  The nature and extent of this Tribunal’s criticism of Mr Mulhern and of the respondents is such as to be indicative of a significant measure of sympathy towards the claimant.  The respondents’ submission that any remit should not be to the same tribunal is, in the circumstances, justified.  

Disposal 
38.	In the foregoing circumstances, we will pronounce an order upholding the appeal and revoking the judgment of the Employment Tribunal except insofar as it found that the claimant was unfairly dismissed by the respondents.  We will then  remit the case to a freshly constituted tribunal to determine compensation including the issue of whether any award should be reduced under and in terms of s.122(2) and /or s.123(6) of the Employment Rights Act 1996.