David Flory admits Rose Gibb was 'unjustly denied' employment rights

The Department of Health’s director general of NHS finance, performance and operations also told the court he was asked for guidance on Ms Gibb’s severance package but the agreement was signed before he had reviewed it.

Mr Flory was called as a witness today to answer questions on his role in the agreement – and subsequent halting – of Ms Gibb’s severance package.

He told the court he had been aware that a potentially contentious severance agreement was being discussed with Rose Gibb and that he was asked for guidance. He had phoned a director at NHS South East Coast to ask for more information.

Waiting for information

He said he did not do anything else because he believed that the strategic health authority would get back to him with more details. But within a few days the agreement with Ms Gibb had been signed. A few days later the highly critical Healthcare Commission report into outbreaks of C difficile that probably led to the deaths of at least 90 patients was issued.

Ms Gibb is suing the trust for breach of contract after it subsequently refused to pay her any more than her contractual pay in lieu of notice.
Her counsel Oliver Segal said the SHA had sought Mr Flory’s view on “whether the trust will need to approach the Treasury directly or whether the Department of Health would sanction any payment the SHA approved”.

Mr Flory was sent a briefing on the situation at Maidstone and Tunbridge Wells trust around 2 October 2007. He did not know what figures were being discussed but was told that the trust needed to act quickly.

No figures

However, he was asked about possible courses of action needed for such a settlement – such as referral to the Treasury for approval.
Mr Flory said he did not answer that question in the briefing as he did not know details of the proposed agreement.

The judge, Mr Justice Treacy, intervened to ask: ‘What if anything was your response? Did you hang up and wait to see if anyone got back?’

Mr Flory responded: “I asked when the SHA was going to know what the proposed agreement was and when they would share that with the Department of Health.

“The response was words to the effect we will get back to you. The next thing I was aware of was that the agreement had been signed.
“I was under the impression that the SHA would be aware of the proposed agreement before it was signed and at that stage I would have the opportunity to review it and take a view.’’

Mr Segal suggested that time had been of great importance in this case. “Did you in any sense suggest what process was being followed in the very narrow timeframe?” Mr Flory responded: “No.”

Employment rights

But when the Healthcare Commission report came out there was enormous media interest and outrage. Mr Flory wrote to the trust ordering it to withhold the payment. He denied that this was a political decision, although he said he had spoken to both the NHS chief executive and the secretary of state’s office before he did so.

He said: “Part of the informal deal of taking on these roles [NHS trust chief executives] is that there are circumstances in which you simply need to go as part of enabling confidence to be rebuilt.
“It was in that context that I formed my view that it was not unfair to not pay further monies.”

He said he had not been aware at the time that Ms Gibb had lost her right to claim unfair dismissal at an employment tribunal by the time she was informed she would get nothing but her pay in lieu of notice.
A clause in the agreement she had signed stipulated that she could not claim unfair dismissal.

And under tough questioning from Mr Segal Mr Flory agreed that Ms Gibb was “unjustly deprived of her right to make a statutory claim, flowing from the particular way she was forced to leave”.

Glenn Douglas, the present chief executive of the trust, also admitted that the treatment of Ms Gibb “had not been as fair as it could have been”.

But he said this was because the compromise agreement was “erroneously done”.

The hearing continues.