Shock Rose Gibb court judgement

Ms Gibb was suing the trust for breach of contract after it refused to pay her the full £250,000 pay-off she had originally been offered to leave the trust.

The judge at the High Court ordered her to pay costs.

The trust’s costs alone are expected to be around £90,000.

The Department of Health had agreed to underwrite the trust’s legal bill if Ms Gibb had won the case.

The judge, Mr Justice Treacy, has also refused Ms Gibb permission to appeal.

Ms Gibb resigned just days before publication of a damning Healthcare Commission report into outbreaks of C difficile at the trust that contributed to the deaths of at least 90 people.

In his judgement, Mr Justice Treacy said the trust was acting outside its powers. It was being “irrationally generous” towards Ms Gibb in wanting to pay her much more than it legally would have had to.

He found that the non-executives at the trust were “personally reluctant to see Ms Gibb depart, notwithstanding the findings of the HCC report”. In his judgement, their personal views clouded their approach, which was one of wishing to be generous to Ms Gibb.

By and large, the judgement is not critical of the NHS.

The judge said he was satisfied there was no question of the department or the trust deliberately delaying the process so that the time for going to an employment tribunal expired.

When the case was being heard, the Department of Health’s director general of NHS finance, performance and operations David Flory admitted in court that Ms Gibb was “unjustly denied” her right to claim unfair dismissal.

But the judge said Ms Gibb had access to her own legal advice at the time and she should have realised that there was the potential to miss the employment tribunal deadline. It would have been possible for her to issue a claim for unfair dismissal in that time. Because of that, he found that the trust had not been “unjustly enriched” at her expense.

The judge did not consider that the assurances given by members of the then trust board about the process that was being followed to approve the pay-off were “deliberately misleading”. However, at points, they went beyond “mere mistaken or careless conduct” and were “reckless”.

Ms Gibb will keep the £75,000 she was contractually due as money in lieu of notice, equivalent to six months’ pay.

For more on the judgement, plus reaction from across the NHS, go to hsj.co.uk/rosegibb