A PHOTOGRAPH of a civil servant gagged and tied to a chair was not taken at the time the woman involved said it was, a tribunal has heard.

A digital forensic expert claims the infamous image of DeeAnne Fitzpatrick taped to a chair in a Marine Scotland office was taken in August 2009, not in December 2010 as she claimed.

The photograph, which went viral at the peak of the #MeToo movement in 2018, prompted a national outcry and an investigation by the Scottish Government body. 

Ms Fitzpatrick claimed she was subjected to the ordeal because she blew the whistle on misogyny and abuse within the organisation’s Scrabster office in 2010, but bosses later sacked her on the grounds that she lied about the timing and nature of the incident.

The Canadian national is now pursuing an employment tribunal claiming the dismissal was unfair and seeking to be reinstated by Marine Scotland. She is also making a claim she was dismissed due to whistleblowing. Digital expert James Borwick told the hearing that he was asked to look into the photograph and a number of emails in the case as part of the body’s disciplinary investigation.

Solicitor Andrew Gibson, representing Marine Scotland, asked: “With what degree of certainty can  you say that this photograph was taken on the 10th August 2009 and not the 16th December, 2010, and why can you say that?”

Mr Borwick, who travelled to a Marine Scotland office in Campbeltown to access the original photograph on the government body’s server, said: “By the end of my examination and my investigation, I’d examined a picture, DF.jpeg, that was stored on the SCOTS server and that picture had a creation date of 2009, a last modification date of 2009, and the date embedded within it said exactly the same thing – 2009.

“So I’m certain that it hasn’t been modified or tampered with in any way whatsoever.”

Mr Gibson put it to the witness: “If Ms Fitzpatrick is to be believed, this file was taken some 16 months later.”

The witness said: “If, as Ms Fitzpatrick maintains, this photo was taken in 2010, then the created date would say December 2010.” Mr Borwick also went on to explain that  if someone had changed the creation date on the image, which could not be done easily, there would be “markers all over” the file’s data to indicate the change.

In cross-examination, Ms Fitzpatrick put it to the witness: “In your summary you’ve said that you were provided with a copy of file DF.Jpg and you were asked to verify when it was created.  “After examination of the file, you say that the metadata revealed it was created on 10th August 2009 using an Apple iphone.  “Do you still agree with this statement?”

He replied: “Yes I do.”

Ms Fitzpatrick asked: “Is it not actually true that the metadata simply indicated that it might have been created on the 10th December 2009?”

Mr Borwick said: “No. The file itself was created in 2009, which meant the picture existed in 2009.”

Ms Fitzpatrick added: “Are you 100% certain that the Df.jpg examined on the Scots server was created on the 10th August 2009? Do you still stand by that certainty?”

The witness replied: “I do, yes.”

The tribunal also heard from senior civil servant David Wallace who took the decision to dismiss Ms Fitzpatrick.

She asked him: “Do you think for jollies I don’t mind tape being placed over my mouth?”

He replied: “Nothing in that behaviour felt like acceptable behaviour in an office environment, but I believe that the circumstances of it were not as outlined by you as happening in 2010 as a result of whistleblowing. It happened in 2009 in different circumstances.”

Ms Fitzpatrick also asked: “Why would I intentionally lie about something that happened to me?”

Mr Wallace replied: “I’m assuming that the construction of a story which said the picture had been taken in 2010 rather than 2009 was beneficial to you in some way and therefore that’s why you initially said the photograph was taken in 2010.  “I’m assuming that was the motivation for doing it, but beyond that I’m not sure I can comment.”

Mr Wallace was asked why Ms Fitzpatrick’s disciplinary hearing went ahead in her absence despite medical advice stating that her attendance at the meeting would have a significant impact on her mental health.

He said that there was conflicting medical advice about Ms  Fitzpatrick’s mental health and also that he was aware that she had managed to represent herself in other situations – including contacting First Minister Nicola Sturgeon about her case.

“There was correspondence which demonstrated that she was able to put forward a case ably,” he said.

The tribunal, before employment judge Alexander Kemp, continues.