Human resources leaders across the NHS face some soul searching after the unanimous decision by an Employment Tribunal that a Chief Executive and former Medical Director with an impeccable record of service was successfully subjected to sustained “behind the scenes machinations” culminating in her unfair dismissal. [https://www.judiciary.uk/judgments/dr-susan-gilby-v-countess-of-chester-hospital-nhs-foundation-trust/]
Those involved titled themselves “Project Countess” and it was created after Dr Susan Gilby CEO began raising concerns with directors in spring 2022 about what the Tribunal agreed was the Trust chair’s “confrontational and aggressive behaviour”. The Tribunal found that at the heart of the conspiracy, alongside the Trust Chair and two Non-Executive Directors was the Chief People Officer, whose evidence the Tribunal found to have a “total lack of credibility” (para 206).
There are lessons for Directors in every NHS Board who need to ask what they would have done faced with such nefarious and vindictive plotting. There are also serious questions for the Trust lawyers, Weightmans, not to mention the ubiquitous “investigators” Ibex Gale, both of whom made a lot of money from events that cost the Trust a fortune on legal and investigation fees.
The Michelle Cox case (2023) prompted NHS Chief People Officers to review their approach to tackling racism https://www.gov.uk/employment-tribunal-decisions/ms-a-cox-v-nhs-commissioning-board-operating-as-nhs-england-slash-nhs-improvement-2415350-slash-2020-and-2401365-slash-2021
This case, similarly, has important lessons for every Chief People Officer about where their loyalties lie (and what they should do) if powerful leaders expect them to lie and help victimise staff who raise protected disclosures. The judgement contains key learning for all Chief People Officers and their staff. Here is some of it:
If you allow yourself to be party to (never mind central to) to an attempt to “build the appearance of performance and misconduct allegations with a view to exiting the claimant out of the business” (Para 30) then you should know it risks your reputation and career when you are found out. This is even more so if a Tribunal concludes that you are an “inaccurate historian who did not give credible evidence of a number of key matters” (para 43).
If you collude in (or organise) the permanent deletion of exemplary appraisals, emails and other documents that might disprove allegations, especially after the member of staff in the firing line has explicitly asked to access them and asked that they not be destroyed, then a Tribunal is likely to draw adverse inferences about your motives (Para 62). You may also find yourself under criminal investigation for attempting or conspiring to pervert the course of justice.
If you witness a Trust Chair who had already been alleged to have bullied and harassed members of staff begin “to thump his hand on the table repeatedly” (Para 108) in a key meeting “in which “half-truths were used to justify the claimant’s exit from employment” (Para 153) then you would reasonably be expected to act to ensure that if a formal complaint about such behaviour was received, it should be investigated, expeditiously in accordance with Trust policy. Similarly, you would not be expected to collude with those seeking to delay the investigation until the member of staff raising the concern had been driven out of the organisation (Para 123).
You would be expected to know a Tribunal might draw adverse inferences from an attempt to make it a precondition of a draft compromise agreement that a protected disclosure be dropped – and that any such attempt will almost certainly contravene “freedom to speak up” or similar organisational policies.
If you make private notes you term “legally privileged” which set out “the best strategy to adopt to exit the claimant”, you should not be surprised if a Tribunal forms an adverse inference when this private note surfaces and contradicts your sworn evidence. (Paras 129-130)
If you are party to a threat to subject someone who has made a protected disclosure to formal capability procedures without setting out what the individual’s alleged failings are, then that is likely to be seen as a further act of harassment and victimisation. (para 187) In doing so, of course, you would also run foul of Wes Streeting’s assurance that “NHS managers who silence whistleblowers or endanger patients through misconduct could be barred from working in the NHS, under proposals being announced this week ” https://www.gov.uk/government/news/new-protections-for-whistleblowers-under-nhs-manager-proposals
If you are asked to suspend someone where “there was not enough evidence to exclude the claimant on conduct and there was no procedure whereby exclusion could be on conduct alone” (Para 215) then you know you risk a Tribunal demolishing your explanation and damaging your professional reputation. This is especially the case if you draft and sign a suspension letter a Tribunal then concludes was “using any allegation, no matter how unmeritorious, to build up a sham case against the claimant” (para 216).
You are expected to know that “employers should not suspend unless necessary and then only for the shortest necessary period” (Para 294) and that “where an employer characterises suspension as a “neutral act” that might not be the case, especially where a person is a professional person (Para 296). It follows that “if suspension is precipitate or otherwise unjustified, it will likely amount to a breach of the implied term of trust and confidence” as this Tribunal found (Para 328). You should never find yourself in a position where a tribunal finds a suspension was undertaken on your signature “without due process having been followed and without there being any lawful basis for such exclusion” (Para 389 D4)
You should also note that the Susan Gilby judgement directly quotes, approvingly, judicial pronouncements to the effect that such suspensions may well not be “neutral acts” and noting “it would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it” (para 297)
You should note that the Tribunal recorded that the instruction that Susan Gilby “have no contact with potential witnesses (including long standing friends)” and to not access her emails despite remaining at that time a Trust employee “fettered her ability to defend herself against threatened disciplinary proceedings and hobbled her ability to fully particularise her claims against the respondents “(Para 310 D5)
In summary, we have here an NHS Chief People Officer who an Employment Tribunal found was:
a core participant in what a Tribunal describes as “machinations aimed at destroying the claimant’s professional standing and career (para 262)
found to be “using any allegation, no matter how unmeritorious, to build up a sham case against the claimant” (para 216)
They might therefore be seen as being potentially in breach of their own professional code https://www.cipd.org/globalassets/media/comms/code-of-conduct/2023-cipd-code-of-conduct-and-ethics.pdf and potentially in breach of the Fit and Proper Persons Regulations https://www.cqc.org.uk/guidance-providers/regulations/regulation-19-fit-proper-persons-employed not to mention the Nolan Principles.
I believe that where staff behaviours fall short of expected standards then learning and improvement is the preferred response. But that is not an alternative to accountability – something any forthcoming regulation of managers would need to consider https://www.rogerkline.co.uk/post/a-code-for-nhs-managers
In this case, the acts and omissions were so serious, and the consequences so grave that, it would seem appropriate to refer the Trust Chair, the two NEDs and the Chief People Officer who made up “Project Countess” to the Fit and Proper Persons process. The Trust, or NHS England, or the ICB may already have done that. Unless they confirm they have, or someone else has, I will do so.
I am sure that the many NHS Chief People Officers and Board members who would not behave in this way would approve of that step, whoever takes it.
Those who do not approve of such a referral should probably consider their position given the consequences for Susan Gilby:
“My career has been taken from me with no justification, and the financial losses we have suffered are significant. However, I was not prepared to compromise my integrity, so I put my faith in the judicial system. The destruction of evidence by trust officers to cover up wrongdoing is particularly shocking. The time for these behaviours to be acceptable within the NHS is over.”
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