Calum MacNeill QC of Westwater Advocates represented a police fingerprint officer in her successful £415,000 claim for compensation from the Scottish Police Authority (SPA).
Fingerprint officer Fiona McBride, who identified fingerprints at a murder scene as belonging to police officer Shirley McKie in 1997, has won a long-running compensation battle which has played out at every level between the employment tribunal, the Supreme Court and back.
After five Supreme Court justices had restored an order made for the expert’s reinstatement, the SPA argued that it was not practicable to reinstate her to her old job after such a long time had passed and when she still maintained the identification was correct.
However, in a 70–page judgment, the employment tribunal in Glasgow has ruled that they failed to establish that they could not have reinstated her successfully and awarded her compensation of £415,227.
McBride was dismissed by the Scottish Police Services Authority (SPSA) on 1 May 2007 in circumstance which the tribunal decided were unfair and it ordered that she be reinstated with effect from 27 February 2009. It also set a modest compensation figure for the period between the dismissal and the reinstatement date. The SPSA appealed in relation to reinstatement only and the EAT and the Inner House of the Court of Session both took the view for different reasons that the reinstatement order should not have been made, but in June 2016 the Supreme Court restored the original decision and remitted the case to the tribunal to consider a new date for reinstatement and a revised amount of compensation.
Back at the tribunal, the employers (by this time the SPA) argued that the Supreme Court, when it said the tribunal should “consider” a new date, did not mean it should necessarily fix a new date and that to do so would result in a “windfall” compensation payment for their former employee. In an argument that the tribunal described as rendering the whole appeal process “meaningless”, the SPA urged the tribunal not to change the date from 2009. The tribunal, however, said the Supreme Court decision was “very clear” that a new date was envisaged and set 27 February 2017. When Ms McBride turned up for work on that day she was turned away, despite not having been told officially that the order would not be complied with.
In a hearing to assess an updated compensation sum, the SPA led evidence which it said established that it was not practicable for them to reinstate the identification specialist since procedures had changed so much over time and, since she did not accept she had made a misidentification, returning her to identification work would result in the fingerprint service and the credibility of fingerprint evidence as a whole being undermined. They had written to the Lord Advocate who had replied that he would not intend calling McBride as a witness in any forthcoming trials. However, the tribunal found that since the original dismissal in 2007, which was itself admittedly unfair, the authority had adopted a rigid position which had proved impervious to the passage of time and changing circumstances. There had been no communication with the claimant about her training needs nor to ascertain her views of the findings and recommendations of the official fingerprint inquiry into the McKie affair.
The letter to the Lord Advocate was worded so as to elicit the desired response. It had omitted essential information which, had it been included, could have produced a very different reply. Compensation was payable in respect of the period from the date of dismissal to the amended date for reinstatement and the statutory cap for unfair dismissal cases did not apply. The tribunal also awarded the maximum possible “additional sum” of 52 weeks’ pay on top.
Ms McBride was represented by Mr MacNeill, instructed by David Ogilvy of Turcan Connell. The employers were represented by Brian Napier QC of the Hastie Stable, instructed by Amanda Jones of Dentons.