Power and inequality in access to workplace justice: tip of the iceberg

Many readers will be aware of the case of Dr Susan Gilby who was the Chief Executive of the Countess of Chester NHS Trust/ She had been praised for guiding the trust through the pandemic and its recovery post-Letby.

In 2021, Ian Haythornthwaite was appointed chairman and Dr Gilby’s job became increasingly difficult as he systematically bullied her. An employment tribunal agreed with her evidence and in February2024 it ruled that board members at the trust (including the Chief People Officer) had conspired to remove her from her job.

The tribunal found she had never been presented with the reasons for her suspension and that the trust had instead "built up a sham case" against her.

She went to court after being suspended in December 2022 and has now been awarded £1.4m in damages after suing the Trust for unfair dismissal. The final cost to the taxpayer - including court costs - could be around £3m after the trust refused offers to avoid the case going to court.

Dr Gilby said she was initially offered a pay-off - the equivalent of 16 months of her salary - while she did "a non-job" with NHS England. But she said the offer had a sting in the tail.  "I had to drop my concerns, drop my grievance about the behaviours of Ian Haythornthwaite, and for me, that was an absolute red line.”

"The idea that I would walk away and this would never be mentioned again, was absolutely unpalatable to me. I wouldn't have been able to live with myself knowing that I had taken effectively a bribe. It was effectively chequebook litigation, and the perpetrators were able to do this because it wasn't their own chequebook, it wasn't a business in which they had a financial interest.,

"It's had a devastating impact, if I'm honest," she says. "I've felt extremely isolated, and definitely feel that I am regarded as a pariah in the NHS. I think there is an unwritten rule that you do not take the NHS to court. You don't stand up and be counted. You take the bribe, you keep quiet and you move on."

Power

Dr Gilby case illustrates one of the issues considered in the recent report Investigating the Investigators. An NHS employer can spend hundreds of thousands of pounds of taxpayers money on fancy solicitors and barristers whilst the NHS staff member is entirely dependent on their union or home insurance, if they are lucky, to resist the pressures. https://www.rogerkline.co.uk/post/investigating-the-investigators 

The Investigating the Investigators report highlighted the completely lop-sided investigation process. It noted (page 65) that it is the employer who:

• decides if an investigation is necessary;

• appoints the commissioner and the investigator;

• largely determines the Terms of Reference;

• has access to the personal and contextual data that the investigator or subject of the investigation says they need;

• sets rules around witnesses, notably a common refusal to allow witnesses who have left the organisation, though (perhaps because) they may feel more able to speak freely.

• has ready access to professional legal advice

• decides if an investigation is necessary;

• appoints the commissioner and the investigator;

• largely determines the Terms of Reference;

• has access to the personal and contextual data that the investigator or subject of the investigation says they need;

• sets rules around witnesses, notably a common refusal to allow witnesses who have left the organisation, though (perhaps because) they may feel more able to speak freely.

• has ready access to professional legal advice

• receives the draft report with an opportunity to not only fact-check but to amend the outcome

• determines whether all or part (or none) of the main body of the report is shared.  has significant influence over the treatment of and support to the subject of the investigation.

• will appoint any subsequent panel and then appoint an HR adviser to it.

• receives the draft report with an opportunity to not only fact-check but to amend the outcome

• determines whether all or part (or none) of the main body of the report is shared

• has significant influence over the treatment of and support to the subject of the investigation.

• will appoint any subsequent panel and then appoint an HR adviser to it.

Completely lop-sided “justice”

Interviewees for the Investigating the Investigators report described an “inequality of arms” by which they were generally completely out-gunned by the employer who both controlled the process and had access to what seemed to be an open cheque book both during the investigation and in any tr8ibunal proceedings.

This 'inequality of arms' was visible in plain sight if staff turned to the Employment Tribunal system. They found that access to union support and the quality of advice given were often inconsistent and rarely well explained. Most unions use a “51% chance of success” test to decide whether to support representation at an Employment Tribunal. Consequently, many who did pursue tribunal cases were not represented by their union and had to act as litigants in person, placing themselves at a great disadvantage both in arguing their case and when confronted with rising legal costs and the threat of a costs order against them.

Whether intentional or not, the impact of the combination of detriment whilst an investigation was in (often interminable) progress and the immense challenges if challenging any decision at any stage was that a substantial number (a majority) of our interviewees resigned, left, or rehired, citing the effect on their morale, health, wellbeing, and trust in ever being able to return to work safely.

It is not in the interest of the NHS that NHS employers can spend a fortune on defending the indefensible with no check or challenge. Dr Gilby’s career is severely damaged. £3million that should have been spent on patient care was instead spent defending lies and inexcusable behaviours by Board members.

What would have happened if Dr Gilby had not been a woman of honour and integrity who had an outstanding solicitor Ian Radford and the 100% support of the BMA?

Questions remain.

1.   Why did not NHS England as the regulator not intervene appropriately when first asked to by Dr Gilby?

2.   Why did NHS England fail to report a single one of the Board conspirators to the NHS Fit and Proper Persons process?

3.   What advice was Weightmans giving the Trust? Weightmans will also be featuring in my next blog.

4.   How much were Weightmans paid for their advice? If your Trust is thinking of using them why not ask?

Postscript

I am aware of at least two other current Tribunal claims in the North West of England where an equally disgraceful lopsided legal process will unravel in the near future.

• In one of them the Secretary of State has been told about it – it is not too late to intervene.

• Will the Regional NHS England director intervene?

• Why is the Trust in question being allowed to spend a fortune defending the indefensible?