Calum MacNeill QC wins McBride case at Supreme Court

Westwater Advocates’ Calum MacNeill QC represented fingerprint officer Fiona McBride in the Supreme Court in a successful bid to restore the decision of an Employment Tribunal to order her employers, the Scottish Police Services Authority (now the Scottish Police Authority), to reinstate her.

The forensic expert and her colleagues had identified a fingerprint at a murder scene as that of DC Shirley McKie but after an international furore about the identification and the acquittal of Ms McKie in the High Court on a charge of perjury, Ms McBride was suspended and then returned to work on duties which did not include signing reports for court or being called to give evidence. After five years on these restricted duties, the SPSA dismissed her, a dismissal that the tribunal held was unfair.

The Employment Appeal Tribunal allowed an appeal against the reinstatement order on the basis that the relationship of trust and confidence between employer and employee had broken down so badly that the tribunal’s decision to order reinstatement was “perverse”. The Inner House of the Court of Session held that, because the tribunal had envisaged a return to restricted duties, the order was not truly one for reinstatement but one which purported to vary the contract of employment and was incompetent.

In a 24–page judgment issued today, however, the UK Supreme Court has unanimously held that it was within the competence of the original tribunal to consider the practicability of reinstatement and to reach the conclusion that Ms McBride should be given her job back.

Although the employers would be unlikely to require her to sign reports or go to court in the foreseeable future, the original order had the effect of returning her to the position she would have been in had she not been dismissed. The case was returned to the tribunal to decide on a date by which the order should be complied with and to calculate the compensation payable for the period since the dismissal on 1 May 2007. It is expected the compensation will be in excess of £250,000.

Mr MacNeill’s junior was Kenny Gibson and they were instructed by Thorley Stevenson. The employers were represented by Brian Napier QC instructed by Maclay Murray & Spens.