The government would never have permitted any payment for Rose Gibb beyond her contractual entitlement, her barrister told the High Court today.

Oliver Segal was discussing the different options that would have been available to Maidstone and Tunbridge Wells trust if Ms Gibb had not agreed to a negotiated settlement. Among them was a dismissal process which was likely to end in an employment tribunal hearing.

Read more on the Rose Gibb case

But Mr Segal said: “There is no way that the government could have been seen to sanction any payment to Miss Gibb beyond her bare minimal contractual entitlement.”

He suggested that any “best alternative” to a negotiated settlement for former chief executive Ms Gibb was “pretty horrific”, involving an employment tribunal hearing, substantial lawyers’ fees and management time, reputational damage to the trust and an “ungagged” Ms Gibb in the meantime. The political situation may not have allowed the trust to simply concede a case of unfair dismissal, leading to a contested case, he suggested. Any case would lead to more publicity.

Earlier he outlined the events leading up to her leaving the trust shortly before the publication of a damning Healthcare Commission report.

Legal advice
As the remuneration committee began to decide she had to go, the strategic health authority was kept informed and said the trust should ensure it got HR and legal advice and did not commit itself until it had advice, he said quoting from an SHA letter of 27 September.

“It did not say get back to us before you sign,” he said.

He said Rose Gibb, who is suing the trust for breach of contract for not paying£175,000 of the£250,000 settlement, would not be able to work in the NHS again. Mr Segal described her position as : “Twenty-six years starting as a nurse, you are marched out – you are never going to get another job in the NHS. That is all you are qualified to do.” The loss in both financial and career terms was “not a small price to pay” he said.

But Jane McNeill QC, representing the trust, said senior health service managers must expect to lose their jobs if there are serious failings under their leadership.

“They are paid high salaries. At the end of the day if there are serious failings under their leadership they must expect that their employment is terminated,” she said.

Beyond the board’s powers
Ms McNeill argued that the former board went beyond its powers by agreeing the payment to Ms Gibb.

But she also countered an argument that even if this payment was within its powers Ms Gibb was entitled to some payment because the trust had “unjustly enriched” itself.

“It’s very difficult to identify any particular benefit to the trust which can be quantified in damages as a result of the agreement being void,” she said. The judge could decide there were legitimate policy reasons for not ordering the trust to pay her any more.

“There has been a not inconsiderate sum paid. The policy of not being seen to reward failure is a well recognised and reasonable policy,” she said.

The case is expected to conclude today but the judge’s decision is likely to be announced some time later.