A civil servant who claimed she was taped to a chair after raising concerns about colleagues’ behaviour has lost her £500,000 unfair dismissal and breach of contract claim at an employment tribunal.
Ms Fitzpatrick, who worked as a senior fishery officer at Marine Scotland’s Scrabster office, was photographed tied to chair with parcel tape over her mouth.
She claimed the incident was in retaliation for her raising concerns about staff behaviour, and that the perpetrators had told her “that’s what you get for speaking out about the boys”, but the tribunal and her employer found that the photograph was taken at a much earlier date than she had alleged.
The tribunal heard there was a “culture of puerile pranks” in the office, including staff putting ice in others’ clothing, using pen casing as a “peashooter”, and taping someone who had fallen asleep to his chair.
It found that she had been a “willing participant” in the office prank and had “perjured” herself at the tribunal by alleging that the incident occurred in a different manner on a different date.
Fitzpatrick did not make a complaint about the incident at the time, and when the photo was circulated among other staff, the claimant discussed it in a light-hearted manner.
In 2013, she made a number of complaints about the way she had been treated at work, but did not complain about the photograph.
Disciplinary charges were levelled against her in November 2016 and in June 2017 she lodged a claim for harassment with the employment tribunal.
The 2017 tribunal claim included an allegation that “between September 2010 and March 2011 the conduct of the claimant’s colleagues at [the office] continued to violate the claimant’s dignity and create an intimidating, hostile degrading humiliating and offensive environment” for her.
At the tribunal hearing in November 2017, Fitzpatrick claimed that the photograph had been taken in December 2010 after she had made a complaint about colleagues’ behaviour in September 2010, which she claimed was a protected disclosure.
The case attracted significant media attention and her claims about the circumstances surrounding the photograph were investigated by police, which caused “substantial distress” to the colleagues involved in the chair incident, who also claimed to receive threats online.
A judgment from the 2017 tribunal struck out most of her allegations.
In 2018, a formal review into the claimant was initiated by Marine Scotland. It alleged she had used inappropriate language during an inspection, caused offense to a service user, and were disrespectful and behaved inappropriately around colleagues.
An investigation into her allegations about the photograph took place. Fitzpatrick maintained that the incident happened in December 2010 after she blew the whistle, but the colleague she alleged had taken the photo said that it had been in 2009 and was part of general “high jinks” in the office.
In 2019, forensic analysis of the file data showed that the photo was taken in August 2009, not 2010 as Fitzpatrick had alleged. It also emerged that she had fabricated emails relating to the incident.
The claimant was suspended from work on medical grounds in September 2019 and later dismissed following further investigations into allegations of gross misconduct.
In the tribunal’s decision published last week, employment judge Alexander Kemp said: “We concluded that the sole reason for the dismissal of the claimant was a belief that there had been misconduct by the claimant in lying about the date and circumstance in which the photograph came to be taken, in particular that it was taken in December 2010 and was a reaction to a protected disclosure by the claimant in September 2010 when neither was true.
“We were satisfied that there was a level of dishonesty in relation to [the allegations] which was sufficiently high as to amount to repudiation of the contract by the claimant.
“Taking all of the evidence before us into consideration we concluded that the respondent had proved that it was entitled to terminate the contract without notice as a result.”
The tribunal found the photograph of the claimant was “not acceptable in the modern workplace”.
“It was not a kindergarten … but a government office charged with enforcing the law. It was at least for a material period dysfunctional given the evidence of how those working there conducted themselves and not all steps that were recommended to be taken to remedy that were.”
It notes that while Marine Scotland had succeeded in getting the claim dismissed, “it may nevertheless wish to reflect carefully on how it handled all the matters addressed in this judgment”.
