Interim finance chief’s row with CCG over ‘warm words’ revealed

In a ruling published this week, the employment tribunal in Liverpool concluded Mike Treharne had been fairly dismissed after he argued he had been “effectively promised” the substantive post by Wirral clinical commissioning group’s former accountable officer Jonathan Develing.

However, employment judge Kenderik Horne said any such promise would have been just “warm words” and decided the CCG did not have to appoint him on a permanent basis.

Mr Treharne was appointed Wirral CCG’s interim chief finance officer on a two-year, fixed-term contract in February 2016, after then-substantive CFO Mark Bakewell took up a secondment elsewhere.

According to the judgment, the CCG’s then accountable officer Mr Develing told Mr Treharne when he started he “did not expect” Mr Bakewell to return. However, it was disputed whether Mr Develing, who is now director of strategic partnerships at Liverpool Heart and Chest Hospital Foundation Trust, told him he would be on a permanent basis in the future.

A new AO

During the course of 2016, NHS England became concerned about the CCG’s budget deficit and “aspects of its governance”, before placing it under statutory directions in February 2017. These directions were renewed in August 2018. 

Also in early 2017, Mr Develing resigned to work for another CCG, but, before he left, he extended Mr Treharne’s contract by another two years, until the end of January 2020. Simon Banks took over as accountable officer in April 2017.

The judgment questioned why the contract was extended at this point but concluded: “The most likely explanation for Mr Develing agreeing to extend [Mr Treharne’s] contract is that he thought he was doing [Mr Treharne] a favour. Effectively he was tying Mr Banks’ hands to provide [Mr Treharne] with an additional two years’ job security.”

In July 2019, around six months before his contract was due to end, Mr Treharne was told his position was being advertised externally on a substantive basis. The judgment revealed the CCG had considered extending his contract further, but there were concerns about giving Mr Treharne the impression he had “a ‘claim’ on that role”.

At this point, the judgment noted Mr Treharne was “shocked and argued back”, claiming he had “a legal right to the role given the length of his contract”. 

A new CFO

Wirral CCG held interviews in November 2019 before hiring Mark Chidgey as its substantive chief finance officer. According to the tribunal document, although Mr Treharne admitted Mr Chidgey “did better on the day”, the CCG was contacted by his solicitors nearly two weeks later who called his termination “blatantly unfair”.

Correspondence continued between the CCG and the solicitors but, in January 2020, Mr Banks wrote to advise there was no alternative employment available for Mr Treharne.

However, after concerns about the gap between Mr Treharne’s end date and Mr Chidgey’s start date, the CCG appointed Jonathan Doyle as interim chief finance officer. Mr Banks had thought about extending Mr Treharne’s contract further, but human resources warned this could expose the CCG to a legal risk “in that [he] would be considered a permanent employee”. Mr Treharne left the CCG in January 2020.

A fair dismissal

Deciding the dismissal was fair, judge Horne concluded employing Mr Treharne on a string of fixed-term contracts was “objectively justified” and he had not achieved the status of a permanent employee.

He added dismissing an interim CFO when it was decided a permanent one should be appointed was a “substantial reason of a kind such as to justify dismissing an employee”. 

There was some dispute over whether Mr Develing had promised Mr Treharne the job would be his permanently if Mr Bakewell did not return. The judge said: “I did not find it necessary to resolve that dispute. This is because, even if Mr Develing did make that comment, it was obviously just warm words.”

Judge Horne continued: “By the time the evidence had concluded, however, that argument [that he had been promised the permanent role] had effectively disappeared. [Mr Treharne] always knew that Mr Develing was never in a position to make such a promise, and that if the role was made substantive the [CCG] would have to run a recruitment process.”

Mr Treharne also argued Paula Cowan, the CCG’s chair, should not have been on the recruitment panel during the 2019 interviews “because of her strained working relationship” with him.

However, the judgment noted: “A decision on recruitment of the chief finance officer would inevitably need to be taken by the most senior members of the organisation.” The judgment did not elaborate on why the relationship between the two was strained. 

Wirral CCG declined to comment further.