Case Nos.1702168/2008 1702079/2009

EMPLOYMENT TRIBUNALS

Claimant:

Respondent:

Heard at:

Before:

Mr John Watklnson

Royal Cornwall Hospitals NHS Trust

Taunton On: 1-5, 8-12 March 2010 1 5 - 1 6 March (Plymouth) 17 March 2010 (Exeter) 23 March 2010 (Decision meeting)

Employment Judge John Hollow Mr. G Ellis Mr BM Knox

Representation

Claimant:

Respondent:

Miss Jane McCafferty of Counsel

Mr. Simon Devonshire, One of Her Majesty's Counsel

JUDGMENT The unanimous judgment of the Tribunal is:-

1) The claimant was unfairly dismissed by the respondent as a result of his having made a protected disclosure on 5"̂ August 2008. The dismissal is automatically unfair.

2) The dismissal was procedurally and substantively unfair.

3) The claimant was not subjected to a detriment as a result of having made a protected disclosure on 30'^ September 2008.

4) The claim is adjourned for further consideration as to remedy.

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REASONS

1. These claims are brought to the Tribunal by Mr John Watkinson who was formerly employed as the Chief Executive of the Royal Cornwall Hospitals NHS Trust. He was so employed from 1 January 2007 until 21 April 2009 when he was dismissed without notice. The claimant brings two claims to the Tribunal. By his first claim (No. 1702168/08), he claims that he was subjected to a detriment contrary to S.47B Employment Rights Act 1996. The protected disclosure upon which he relies is his disclosure to the respondent's Board on 5 August 2008, that they were under a duty to undertake public consultation with regard to the reconfiguration of Upper Gastro-lntestinal cancer services, then provided at the respondent's hospital at Treliske, Truro. The detriment of which he complains is suspension and being subjected to allegedly libellous publicity. In the course of his case to the Tribunal, he expanded the detriment to include failure by the respondent to implement a salary increase. In his second claim (No. 1702079/09), the claimant complains that he was dismissed as a result of having made protected disclosures. The protected disclosures upon which he relies are the tendering of legal advice on 5 August 2008, and the allegation contained in the letter to the respondent dated 30 September 2008, that they had breached their legal obligations to him by suspending him and subjecting him to adverse publicity. In each case he alleges that the underlying reason for his suspension and subsequent dismissal is that the respondent acted as it did as a result of pressure from the Strategic Health Authority and, in particular, its Chief Executive, Sir Ian Carruthers. In summary, his case is that by advising the respondent of its duty to consult over changes to the provision of Upper Gl services he acted contrary to the wishes and intentions of the Strategic Health Authority with the result that pressure was applied to the respondent ultimately to dismiss him. The claimant also alleged that his dismissal is unfair on ordinary principles through failure to follow a fair procedure.

2. The claimant's case has been argued comprehensively by his Counsel. At the conclusion of the evidence, she submitted a written skeleton of her closing submissions, to which she spoke, and to which reference can be made. This set out the claimant's case in more detail.

3. By its responses, the respondent denies both claims. It takes a number of points. First of all, it disputes that in neither case, does the disclosure relied upon by the claimant amount to a qualifying disclosure for the purposes of S.43B of the Act. It raises the issue in relation to the first claim whether the claimant had raised a grievance in writing as required by s.32

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Employment Act 2002, then in force. No such requirement existed in relation to the subsequent claim, which was of dismissal. The respondent took the point in relation to both alleged disclosures but in particular, in relation to the second that if there had been a protected disclosure the SHA was not aware of it. If that were so, it must follow that the SHA could not have been influenced by matters of which it knew nothing to put pressure on the respondent. It is further argued that even if the SHA had been aware of the disclosures, these were not the reasons or principal reasons for any pressure which might have been applied to the RCHT. The respondent further argued in relation to the second claim, that even if the dismissal was unfair on ordinary principles the claimant would probably still have been dismissed if a different procedure had been followed - the 'Polkev' issue. Their further argument is that even if the 'Polkev' issue were to fail the claimant had by his own conduct contributed to his own dismissal and this should be reflected in any award of compensation. On behalf of the respondent Mr Devonshire QC submitted a lengthy written submission to which he spoke at the conclusion of the evidence and to which reference may be made as necessary,

It may be helpful to identify the persons and organisations to whom we refer:

a. RCHT - Royal Cornwall Hospitals NHS Trust. This is the NHS Trust having responsibility for delivery of health services in Cornwall where it operates several hospitals including Treliske Hospital at Truro where the claimant was based.

b. SHA - South West Strategic Health Authority based in Taunton. This authority has the responsibility for supervising and overviewing the activities of some 40 NHS Trusts in the South West of England including the RCHT.

c. IC - Sir Ian Carruthers, at all material times the Chief Executive of the SHA.

d. MP- Sir Michael Pitt, Chair of the SHA. e. AM - Andrew Millwood, Director of Communications and Corporate

Services for the SHA. f. WS - William Shields, Director of Finance and Performance for the

SHA. g. LM - Lisa Manson, Associate Director of Performance of SHA. h. NEDs - Non Executive Directors of RCHT. i. EDs - Executive Directors of RCHT. j . PD - Peter Davies, Chair of RCHT from May 2007 until resignation

on 10 July 2008. k. JM - John Mills, Vice Chair of RCHT who took over from PD until

March 2009. I. MW - Martin Watts, NED who resigned on 30 April 2007 and was

subsequently appointed Chair on 17 March 2009. m. DW - Douglas Webb, NED from December 2007. n. RG - Roger Gazzard, NED since October 2006. 0. RK - Rick Evans, NED appointed November 2007. p. PW - Patrick Wilson, NED. q. GM - Gregg Moulds, Director of Corporate Affairs.

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r. JDB - Julia Dutchman Bailey, Interim Director of Organisational Development, Nursing and Therapies at RCHT.

s. DB - Dominic Byrne, Medical Director of RCHT until resignation, t. IG - Ian Gibson, Acting Director of Strategy of RCHT. u. JP - Jo Perry, Director of HR of RCHT. V. JT - Jo Teape, Financial Director of RCHT from 1 January 2008. w. TP - Tony Parr, Interim Chief Executive during the claimant's

suspension. X. PC - Peter Colclough, Acting Chief Executive from March 2009. y. SI- Sally Ingles, PA to the Chairman of RCHT. z. OSC - Health and Adult Care Oven/iew and Scrutiny Committee, a

committee of the Local Authority (Cornwall Council) discharging obligations to scrutinise local health services and independent of the NHS.

aa. EP - Eric Parkin, Chair of OSC. bb. PCT - Cornwall and Isles of Scilly Primary Care NHS Trust, cc. HCC - Health Care Commission, dd. Bromley -Bromley Hospitals NHS Trust. ee.The Hawker Report, a report commissioned by RCHT into its

governance and performance prepared by an external panel chaired by Professor Ruth Hawker,

ff. Griffin Review, a review into the Upper Gl services at RCHT undertaken by Professor Michael Griffin and Mr William Allum, two respected cancer surgeons, external to the RCHT.

gg. AJ - Anne James, Chief Executive of PCT. hh. AW - Andrew Williamson, Chair of PCT. ii. PCN - Peninsula Cancer Network, an NHS Advocacy group set up

to provide advice on cancer care in the South West Peninsular, jj. Derriford, Derriford Hospital operated by Plymouth Hospitals NHS

Trust, kk. R D & E - Royal Devon and Exeter Hospital Foundation Trust. II. lOG - Improving outcome, guidance for cancer patients issued by

Department of Health 2001. mm. Upper Gl - the provision of cancer treatment services including

surgery for patients suffering from upper gasto-intestinal cancer.

5. Within the internal market structure of the NHS in Cornwall, patient treatment services are provided by the RCHT over a wide range of disciplines including Upper Gl surgery up until January 2010. Primary Care Trusts such as the PCT commission, i.e. purchase, the necessary services from Hospital Trusts such as RCHT for which the Hospital Trusts receive payment. The parties enter into a service level agreement, which, as we understand it, covers the level of remuneration for the likely anticipated level of service commission/purchase by the PCT. The activities of all NHS Trusts in the South West region are subject to the overview and scrutiny of the SHA, which, in general terms, wishes to be assured that the Trusts are operating efficiently and within budget. Any Trust, which has a budget deficit, may be provided with additional funds by the SHA by way of a loan, which will be repayable over an agreed period of time. Such a Trust will be expected to take effective steps to ensure that the deficit is replaced by profit so as to secure repayment within the agreed period. The SHA's concern for the Trust is not limited to the

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financial performance but it will take a general overview of sufficiency and the quality of service provided to the public. The HCC is an independent body set up to monitor the performance of NHS Trusts according to a number of standards operating in relation to particular areas. The HCC may then undertake its own inspection of some or all of the standards and may confirm or, subject to appeal, reject the Trust's own assessment of its performance.

lOG was issued in 2001 by the Department of Health. It set out guidance for improving the outcomes of treatment and survival rates for patients who have been suffering from cancer. Upper Gl is a rare form of cancer requiring specialist surgical and other treatment. Better outcomes in terms of survival rates, absence of infection and other postoperative complications are improved by Upper Gl services being concentrated in hospitals serving populations of a million or more. Statistically this offers the prospect of the sufficiently high throughput of cases to enable surgeons and other healthcare professionals to develop the necessary level of expertise and experience so as to improve the outcome for patients. Apart from the surgeons themselves the other disciplines involved include radiography, radiotherapy, intensive care nursing, and follow-up treatment. Provision of such services in an lOG compliant centre would offer the prospect of a throughput of fifty or so cases per annum so as to enable the level of expertise to be developed and maintained. Although Upper Gl services were provided at Treliske the number of patients was normally about 25 a year - not sufficient for RCHT to be lOG compliant. In 2002, PCN produced a plan for the reconfiguration of Upper Gl services. Although such services had been provided at the RD&E and Derriford as well as Treliske, it was proposed that the surgical component of the services be centred at Derriford; which would become a centre of excellence and lOG compliant. So far as Treliske was concerned, it was proposed that all other aspects of the service such as diagnostics, radiotherapy, and follow-up should remain there. It was proposed that the change be effected in two stages with the Cornwall sen/ices being transferred first in 2009 with the service from the RD&E transferring later in 2010. The proposal attracted wide spread public concern and was subject of much public debate and consideration by patient groups, cancer support groups, and generally in the public domain. There were two principal strands to the concerns. First of all, there was the issue as to whether or not the clinical evidence supported the proposition that a transfer to Derriford would be lOG compliant and achieve better outcomes for patients. Secondly, there was the social concern, vociferously expressed by a number of groups, as to the difficulties which would be experienced by patients having to travel from Cornwall - in some cases substantial distances from the far west of Cornwall - to Plymouth, instead of being treated more locally at Treliske. This raised issues as to travelling distances, times and expense, support from friends and family, accommodation for visiting relatives and the general undesirability, as it was seen, of requiring sick patients travel substantial distances for their treatment. As a Tribunal we are not equipped to pronounce on the merits or othenA/ise of the proposed transfer of Upper Gl services to Derriford nor does it fall within our remit to do so. The important issue before us in this respect is the question as to whether or not there was a duty on service

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providers to consult with interested parties and stakeholders. We deal with this in more detail below.

7. Turning to the legal issues we remind ourselves that we are dealing with two claims both arising out of the allegation that the claimant made protected disclosures. It does not follow that the same outcome must obtain in one case as in the other.

8. A protected disclosure is a qualifying disclosure as defined by S.43B Employment Rights Act 1996 made in accordance with ss.43C to H. The relevant passage in s.43B is:-

i. "(1) In this Part a "qualifying disclosure" means any disclosure of information wfiich in the reasonable belief of the worl<er mal<ing the disclosure tends to show one or more of the following -

b. ... c. that a person has failed, is failing or is likely to fail to comply with any

legal obligation to which he is subject d e f g "

9. A disclosure of information in accordance with S.43B is a qualifying disclosure and becomes a protected disclosure if the disclosure is made in accordance with s.43C to H. It must be made in good faith - there is no allegation here that the claimant acted in other than good faith - and it is immaterial that the person receiving the information was already aware of it - s.43L(3). Provided the information is based on a reasonable belief it is not necessary that it be factually correct. Such a belief will suffice even if it subsequently turns out to have been factually incorrect. We further observe that the disclosure may show that the breach of a legal obligation is likely to be committed. In this respect we have been referred to the decision of the EAT in Cavendish Monroe Professional Risks Management Ltd v Geduld [20101IRLR 38 (paragraph 24) which draws the distinction between communicating information and making an allegation. We have also borne in mind the decision of the House of Lords in SCA Paclcaging Ltd v Bovie & Eaualitv and Human Rights Commission [20091 IRLR 746. That decision involved a claim arising out of the disibility discrimiantion act but considered the meaning of the word "likely. The House of Lords concluded that the word meant "could well happerf' rather than " probable^' or "more likely than nof. We have also considered the case of Kraus v Penna Pic & Another [20041IRLR 260 which dealt with the word "likelf - although now superceded by the SCA case. In our judgment there is a distinction which can be drawn between the situation in which an employee advises an employer on the procedure to be followed in order to achieve a desired outcome without breaching a legal obligation, and a warning that a course of conduct that the employer intends to follow to achieve his objective is likely to result in a breach of a legal obligation.

10. In this case it is part of the respondent's argument that the SHA had no knowledge of either alleged protected disclosure. It argues that if the SHA had no knowledge of the protected disclosures it could not have been

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influenced by matters of which it knew nothing. As a commonsense proposition that seems to be unarguably right. Whether or not the respondent had knowledge of the disclosures is a matter of fact to be determined by the Tribunal and we bear in mind that if they had knowledge of one it does not necessarily follow that they had knowledge of both. Knowledge may be established by means of direct evidence or, where appropriate, from inferences which can be properly drawn from primary facts.

11. In both claims before us, if it is established that the respondent knew of the protected disclosures, the Tribunal must still find that there was the necessary causal link between the disclosure and the detriment in the first case and dismissal in the second. Knowledge of the disclosures does not necessarily lead to the conclusion in either case that the motive of the SHA in prevailing upon the RCHT was that the claimant had made disclosures or that the RCHT, which suspended and dismissed the claimant, did so because of the SHA 's wishes as opposed to some other reasons of their own.

12. In any claim of alleged unfair dismissal s.98 Employment Rights Act 1996 imposes on the respondent the duty of establishing its reason for dismissing. It must be a reason specified in the act as being potentially fair. Should the respondent fail to establish its reason the dismissal will be unfair. Of the categories of reasons, set out in the Act, one is "some other substantial reasorf'. Once the reason has been established, it falls to the Tribunal to consider whether or not the dismissal was fair having regard to the provisions of s.98(4). The Tribunal must be satisfied that the respondent has conducted the dismissal in a fair way. Section 98A, commonly said to reverse the effect of the decision in 'Polkev', was repealed with effect from 6 April 2009, the claimant's dismissal taking effect on 16 April 2009. However, since the events which gave rise to his dismissal commenced prior to that date, the repeal is treated as not having taken effect and S.98A remains in force for the purpose of these proceedings - the Employment Act 2008 (Commencement No. 1, Transitional Provisions and Savings) Order 2008, s.1 paragraph 2 (1). Thus, the requirement rested on the employer to send a statement to the claimant inviting him to attend a hearing and setting out the reasons for proposing to take action against him which might terminate in his dismissal. There is no argument that the respondent complied with this requirement. The general requirements of the statutory dismissal and disciplinary procedure will, of course, apply. The respondent's averred reason for dismissing the claimant is a break down in trust and confidence between the parties - a reason falling within "some other substantial reason" and one which may be potentially fair. The claimant's case is that he was treated detrimentally and subsequently dismissed because he had made a protected disclosure. If so, his dismissal will be automatically unfair.

13. We have been referred to the judgment of the Court of Appeal in Kuzel v. Roche [20081IRLR 530. The principles emerging from that case are that if a claimant alleges that he was dismissed as a result of making a public interest disclosure, he must put some evidence before the Tribunal to

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substantiate that proposition; it is not sufficient simply to say that he believes that is so without more. The burden of proving the reason for dismissal always rests with the employer under s.98. The Tribunal must consider all the evidence before it and decide whether, on the balance of probabilities, the respondent has discharged that burden. The Tribunal has to consider whether on all the evidence before it and decide whether, on the balance of probabilities, the respondent has established its reason for dismissing. If not it must consider whether on the basis of the evidence and any inferences it may properly draw from primary facts, that the reason for the claimant's dismissal was that he had made a protected disclosure. The judgment makes it clear that even if the respondent fails to discharge the duty under s.98 there is no reason why the Tribunal must find that the reason is as the claimant says, In many cases it will be but it does not necessarily follow, and the Tribunal may not be able to decide what the real reason may have been. Again, we remind ourselves that we cannot apply the "but foi" test, that is to say we cannot conclude that the dismissal was unfair in that the claimant would not have been dismissed "but for" the fact that he made a protected disclosure. We have to consider all the evidence and decide on the balance of probability what the reason actually was. In a public interest disclosure claim if that reason is established no consideration of the reasonableness of the procedure or decision to dismiss arises. The dismissal is automatically unfair. Equally, in the case of a detriment claim if the Tribunal determines that the reason for the detriment was the disclosure, the claim must succeed.

14. As part of its case the respondent seeks to argue the 'Polkev' issue but in our judgment, this can only arise in relation to dismissal on ordinary principles. A public interest disclosure dismissal is automatically unfair irrespective of any possible procedural unfairness. 'Polkev' can apply to an "ordinary" dismissal in that if the employer establishes that had he followed a different procedure he would probably still have dismissed - i.e. a greater than 50% chance - the dismissal will still be procedurally unfair but no compensation or other remedy would be awarded. If the chance of dismissal is less than 50% the Tribunal can determine the chance that the claimant would still have been dismissed and reflect that in any award of compensation it may make. Further, the respondent seeks to argue that by its conduct the claimant contributed to his own dismissal. In distinction to the 'Polkev' issue, we see no reason why an issue of contribution cannot apply, where appropriate, to a dismissal for any reason including an automatically unfair dismissal and a dismissal where the respondent has failed to establish its reason.

15. We deal now with the duty to consult. The duty arises under s.242 National Health Service Act 2002. In consolidating previous legislation the section provides; -

i. "Each body to which this section applies must mal<e arrangements with a view to securing, as respect health services for which it is responsible, that person to whom those services are being or may be provided are, directly or through representatives involved in and consulted on: -

a, the planning and provision of the provision of those services,

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b, the development and consideration of proposals for the changes in the way those services are provided and

c, decisions to be made by that body effecting the operation of those".

16. It is common ground that the section applies to NHS Trusts such as RCHT and PCT. Secondly; a duty will arise to consult the OSC under Regulations made under s.244 of the Act about substantial changes to the provision of services. We note that the word "substantial" does not appear in s.242 but in our judgment nothing turns on this for the purposes of this case. The claimant obtained advice from Counsel. Counsel advised that there was a duty on both the PCT and the RCHT to consult with the public and/or representatives about the proposed changes. As we see it the section does not prescribe any particular method or level of consultation. It does not appear to prevent consultation taking place jointly or by our one body on behalf of itself and another. S.242 was amended by the Local Government and Public Involvement Health Act 2007. The amendment provides that the requirement is to:-

i. "Make arrangements as respect Health Service for which it is responsible, which secure that users of those services, whether directly or through representatives, are involved whether by being consulted or provided with infomriation or in other ways:

1. in the planning of the provision of those services 2. the development and consideration and proposals for

changes in the way those services are provided and 3. the decision to be made by that body effecting the

operation of those services".

17. It is argued on behalf of the respondent that this demonstrates the flexible nature of the duty. Arguably the duty could be met by a relevant body ensuring that consultation takes place without necessarily undertaking it itself. Equally, the level and extent of consultation will vary. A major and far-reaching change may require extensive and detailed consultation whereas a minor change, such as the rescheduling of a particular clinic from a Tuesday to a Thursday without any change of venue, may require little more than notification.

Some general observations.

18. In hearing this case over a period of some 13 days we have heard evidence from a considerable number of witnesses and have had a very substantial number of documents placed before us. We do not attempt to recite each and every facet of the evidence which has been put before us but to set out in those matters which, in our judgment, represent the salient features of the case. Furthermore, we regret to say that in many respects we have found the evidence put forward by the respondent to be unsatisfactory. There were several important witnesses who were not called to give evidence to the Tribunal. These included MP, JM and particularly IC. We observed during the course of the proceedings that the evidence from these individuals might be of very considerable assistance

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one way or the other. This, we feel, is a matter for adverse comment. At one stage we canvassed with the parties whether or not we should exercise our power under Rule 10 to call those witnesses, although in the event we did not do so. We bear in mind the decision in Claoson v British Airways olc [20011IRLR 184 and have considered the extent to which we may permissibly draw inferences from the fact that those witnesses have not appeared before us. Sadly, we also have to say that we found the evidence of a number of the respondent's witnesses to be unsatisfactory in that the witnesses appeared to be unable or unwilling to give straightfonward answers to simple questions despite being repeatedly pressed in cross examination to give clear and sensible answers. We further note with surprise and some dismay that a number of documents which we would have expected to have seen were not disclosed. For example, the NEDs attended a meeting in the SHA in late 2008 in Taunton to discuss the Hawker Report and attended a further meeting in London in February for the same purpose. Given the importance of the matter it is a curious and unsatisfactory state of affairs that, according to the respondent, no notes or minutes of those meetings were ever kept.

Facts as proved or admitted

19. During a hearing, lasting a number of days, the parties put before us extensive evidence covering a wide spectrum of matters. There are several strands to this case including the Upper Gl issue. These strands have all played their part in the overall factual matrix leading to the termination of the claimant's employment. We do not consider it necessary to recite each and every factual issue but set out those which, in our judgment, are salient to the decision that we have made.

20. The claimant first commenced employment in the NHS in June 1974 and, thus, has continuous service from that time until the date of his dismissal. He commenced service as the Chief Executive Officer of Bromley in May 2003 and remained in that post until 31 December 2006, taking up his post with the respondent on 1 January 2007. During the claimant's tenure at Bromley the Bromley Trust experienced a number of difficulties, including a substantial financial deficit which accrued over a period of years. In September 2008 the RCHT issued a press release referring to the fact that Bromley had accumulated a debt of £87 million including a £23 million deficit in the latest year. This was a matter of considerable concern to the claimant as set out below, but we refer to it at this stage to underline the fact that Bromley was not without its problems.

21. When the claimant commenced employment with RCHT the hospital was in a poor state. In 2006 it had been assessed as being the worst performing NHS Trust hospital in England. It had a very poor rating. The claimant's impression on commencing employment was that the Board, of which he became an ED by virtue of his post, was poor and dysfunctional. Within a very short time the claimant came into conflict with several of the NEDs. The issue giving rise to this was the sale on lease of the hospital car park. There was a dispute as to how the sale proceeds should be accounted for in the Trust's accounts. This was eventually resolved by the District Auditor stipulating that the proceeds should be shown in the

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accounts spread over the life of the lease. Suffice it to say that for this and other reasons a number of the NEDs resigned, including Professor Colin Roberts, the Chairman. One of the NEDs who resigned in April 2007 was MW. In his letter of resignation, he stated that he regarded the appointment of the claimant as very serious mistake. At least one other NED resigned quoting the car park issue as one of her reasons. Following the resignation of Professor Robert, PD was appointed Chairman of the RCHT Board. He had a background of senior management in NHS Trusts. Five other NEDs were appointed included RG and RE.

22. Following the claimant's appointment he perceived there was much work to be done to turn round the fortunes of the Trust. Morale was poor and it had been assessed as being highly unlikely to achieve its overall objectives in terms of management, financial performance and good governance. By July 2008, however, the picture had improved as a result of much hard work on the part of the claimant and the other EDs and NEDs. An internal performance review conducted by the respondent in July 2008 revealed that very substantial progress had been made in many areas, clinical performance, financial performance and Human Resources. It was acknowledged, however, that there was still considerable room for necessary improvement. In relation to the financial performance, whereas the deficit for 2007/8 was anticipated to be some £9.4 million, the Trust had reported a surplus of £1.2 million for that year. The deficit which had accumulated over a number of years included years prior to the claimant's appointment was some £36 million which had in due course to be repaid to the SHA. We heard evidence from the respondents to the effect that the £1.2 million surplus was due to an additional payment of some £7 million pounds from the PCT and did not truly reflect a surplus. We had evidence from WS in which he sought to persuade us that the reality was that the Trust was still in deficit for 2007/8. We have to say we did not understand this evidence and prefer the fact, as the claimant pointed out, that the District Auditor's report for 2007/8 confirmed that the Trust was performing well in financial terms and had achieved a surplus. We heard evidence from DB, that following the claimant's suspension some 120 senior medical staff expressed their support for the claimant and their concern at his suspension. DB commented that it was extremely rare for a substantial number of doctors to reach a unanimous view on anything and the claimant relies on this as an indication that he had been able to bring about a substantial improvement in morale and relations between the clinical staff and the Board.

23. The Trust had been subjected to inspection by the NHS Performance Standards Team and in November 2007 the PST reported that the Trust had made progress in key areas although there remained much to be achieved. In particular they commented that waiting times for emergency treatment were 98% compliant with the required 4-hour standard. Financial performance had improved, in that financial controls were tighter and reporting was more extensive and public. Management systems had been improved. It commented that leadership was overt by the Chairman, Chief Executive and the Executive team. Internal communications had been developed and the senior team prided itself on being responsive and achieving affective two-way communications. The Chief Executive had

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prioritised building effective working partnerships with other local health and social care organizations. The RCHT difficulties had been the subject of much public comment and debate and the Board were very much aware that they were under careful scrutiny not only by the SHA but also in the public gaze.

24. In addition to the claimant joining RCHT from Bromley several other senior Bromley staff joined. These were JDB, as Director of Nursing, Ian Gibson on secondment as Director or Strategy, and Ian Burrows, Director of Marketing.

25. As has been indicated the lOG was issued in 2001 and the PCN plan followed in 2002. In principle, the RCHT supported the proposal subject to the necessary clinical evidence being available to justify the transfer of surgery to Derriford. However, in December 2007 Rob Pitcher, the RCHT Medical Director, wrote to AJ to say that the matter was to be discussed by the RCHT Board in January but pending that discussion patients scheduled for Upper Gl surgery would have their treatment in Truro. His letter expressed the concerns that the Board were contemplating the loss of specialist surgical skills from RCHT. On 20 December, AJ replied to the claimant, following a video conference, confirming the PCT support for the PCN plan. The plan also involved the transfer of Head and Neck and Gynecological cancer surgery, but we are not directly concerned with those particular aspects. In January 2008, the RCHT Board discussed the proposed move of Upper Gl sen/ices and decided that it needed 6 months to consult the clinical staff and to carry out a review.

26. On 8 February 2008 PD had a telephone discussion with IC in which he noted that IC commented that he was unhappy that the claimant was not taking the respondent down the right path regarding Upper Gl and that C was "a bullshittei" who promised but did not deliver.

27. The RCHT Board met on a regular monthly basis. All members would be supplied with a copy of the agenda in good time prior to the meeting together with the minutes of the previous meeting for approval. In addition, they would be provided with agenda papers giving the background and detail of matters to be discussed. Such matters fell into two parts. Part One business was public and open. Part One matters were to be discussed in public. Part Two business was confidential and discussed in the absence of press and public. All discussions would of course be minuted. It was quite normal for representatives of other bodies, such as the PCT and SHA, to attend Part One RCHT Board meetings as observers although they would not normally attend Part Two meetings. Part One minutes would be routinely copied to the SHA and other organisations such as the PCT, OSC and Cornwall Council.

28. There is a dispute between the parties as to whether or not Part Two minutes were copied to the SHA. The claimant's evidence was that he had given a general instruction that they should be copied to the SHA and as far as he was aware that was still being done, his instruction never having been countermanded. We heard evidence from SI to the effect that she did not routinely send Part Two papers to the SHA unless an SHA

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member had attended a Part Two meeting for some particular reason. In October 2009 she had received a Freedom of Information request purporting to come from one Alan Jones enquiring to whom copies of Part One and Part Two minutes were sent. She replied saying that all members of the public have access to RCHT Board Part One papers and that Part Two papers were sent to a number of individuals not including the SHA. A follow up request was received specifically enquiring whether Parts One and Two minutes were sent to the SHA, Cornwall County Council, the PCT and the Council of the Isles of Scilly and other stakeholders. She replied saying that:- "Part Two papers are confidential -SHA received copies on a regular basisT. Her evidence was that this was a mistake on her part. LM gave evidence that since the beginning of 2009 minutes were transmitted and stored electronically. Prior to then they were received in hard copy format and stored in magazine files in an office. They received minutes from each of the 40 or so Trusts for which the SHA was responsible. The minutes were stored in an open plan office to which any member of the SHA staff would have access. As indicated, there is a conflict between the parties as to whether the SHA received Part Two minutes. It is curious that SI should assert that she had made a mistake. In her first reply to the request, she did not indicate that the papers were sent to the SHA, but in response to a specific enquiry on this point we would have expected her to have checked before replying, particularly as her reply only referred to the SHA and none of the other bodies concerned. We prefer the claimants evidence on the point and our find on the balance of probabilities that Part Two minutes were sent to the SHA on a routine basis.

29. On 10 March 2008 the PCT and RCHT Boards had a joint meeting which Upper Gl services were discussed. On behalf of the PCT, AJ made it clear that the plan should be implemented since the service as a whole was working outside Guidance and not lOG compliant. The implication from the minutes was that the PCT were wishing to proceed without further consultation or public engagement. In her evidence, AJ drew a distinction between consultation and public engagement. Consultation would denote disclosure of a proposed change or course of action before a final decision had been made, coupled with the provision of sufficient information and time to enable interested parties to consider and present their views, which could then be taken into account before a decision was made. Public engagement would be a less rigorous process involving the information to the public of a decision that had been made, together with a discussion of its implications and how it would be implemented. She did not suggest that PCT were proposing to carry out consultation as opposed to engagement. Her position was that unless the OSC directed that it take place there was to be no public consultation. This had been their position since late 2007. The issue of Upper Gl services was very much in the public domain and strong views were being expressed by a number of patient groups and campaigners. On 25 March 2008, the OSC met and agreed that the implementation of the plan should be deferred whilst there would be a period of public engagement. This was reported to the RCHT Board. On 31 March 2008 PD wrote to IC prior to a meeting with Chief Executive's on 1 April making the point that RCHT's view was that public consultation was important. The RCHT Board had formed the view, on the

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basis of representations from the consultants, that It would be wrong to proceed without public consultation. Although a meeting had been scheduled to take place with the SHA to discuss the way forward that meeting had never taken place and he was concerned to learn that from the POT, that the service was to have transferred to Derriford on 1 February 2008. On the basis of the evidence then presented to them the RCHT NEDs were not convinced of the clinical case for the transfer but it had been agreed that the matter will be deferred to allow further evidence to be taken and public consultation to take place.

30. On 1 April 2008 a meeting was held at the SHA's Offices in Taunton. This was attended by 10, AJ, the claimant, and representatives of other NHS Trusts. The minutes record that 10 expressed concern about the manner in which the issue of Upper Gl had been the subject of public disagreement and continued debate. He reminded that the need was to put in place a system which was lOG compliant. The proposal was that the centres would be consolidated into one by 2010. The OSO had discussed the matter and it had been agreed that the proposal did not constitute a significant change and did not require consultation. He expressed the view that he could not understand why the implementation of the first phase of the plan was in difficulty. On behalf of RCHT the claimant expressed the view that the RCHT would not be in a position to deliver a compliant service. It supported a plan for a single site but a two site interim solution would not be lOG compliant. There was some uncertainty about the move to a single centre which made it difficult to implement the first phase of the plan. AJ commented that 6-8 week period of public engagement would allow a further explanation of the facts before the transfer could be made. 10 reiterated that the transfer had been sanctioned to take place in 2010 and that outstanding issues needed to be addressed as quickly as possible.

31. On 2 May 2008 10 attended a Peninsula Cancer Network meeting at St. Mellion conference centre near Plymouth. We have heard evidence from witnesses as to the events at that meeting and have seen a note taken by Mr Tito Lopez, a consultant surgeon, who was present. 10 spoke at length, during which he forcefully made the point that the transfers to Derriford were going to take place and that media pressure would make no difference. He criticised the leadership of the Trusts. Mr Lopez's notes include the following: -

i." Disappointed with the leadership to this point. Therefore need to change structure,

ii. Sympathy for Cornwall as will lose some things, neither will it all be in Plymouth because of roads, needed to argue between Plymouth and Exeter,

iii. your family get less good care if you don't move iv. lack of leadership by doctors V. public not cheering this, at least not what I'm thinking vi. more to worry about than 40 operations in 95,000, like worrying

about 1 tin of beans when the larder is full vii. on that issue everyone is losing and ultimately user and carer

losing viii. public outcry will not work - waste of effort. Real effort is moving

from 2 to 1 centre and it won't be Cornwall

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ix. whole of Cornwall can sign petition but won't change outcome X. what people remember is your mistakes xi. all I remember you lot for is you can't sort out 100 re-sections in

95, 000 operations. I won't lose sleep over if.

Considerable concern was generated by IC's remarks at that meeting

32. The PCT's position was set out in a letter dated 14 May 2008 from AJ to Rose Woodward on behalf of 'Keep Cancer Care in Cornwall' campaign. This stated that whilst the PCT were proposing to engage in consultation on the issues of Head and Neck and Gynaecological surgery, their view was that NHS were organisations only required to consult on substantial service changes and that the OSC and PCT both took the view that the proposal in relation to Upper Gl was not substantial and that there was no requirement to consult. There had, however, been a process of local engagement. The PCT felt unable to defer the implementation of the transfer of Upper Gl surgery and that they were proposing to commission such services at Derriford. That letter was copied to a number of recipients including the Secretary of State for Health, Ben Bradshaw MP, Minister of State for Health Services and Exeter's MP, other local MP's: IC, PD and the claimant.

33. Further exchanges took place between the relevant parties during the early summer of 2008 but we do not think it is necessary for us to set them out in detail.

34. On 3 July 2008 the claimant and PD were advised by the SHA that they were required to attend a meeting in Taunton that day in advance of the scheduled meeting of South West NHS Trust Chairmen's and Chief Executive's to be held that day. When the PD and the claimant arrived they had a meeting with IC, MP, Andrew Williamson of the PCT, AJ and Gabriel Scally of the SHA. PD's evidence to us was that they were informed by IC that they were to agree a joint statement setting out their position and were not to leave the room until this had been done. IC and MP left the room but it was made very clear that the statement had to be agreed and would be put before the OSC meeting on 15 July. PD stated that it was the most unpleasant meeting he had ever attended in 38 years of public sen/ice. A draft was prepared, a copy of which has been put before us. It stated that during May and June 2008 the PCT had conducted a period of public engagement over the Upper Gl issue. It stated that the process had been fully supported by RCHT as an opportunity to redress the lack of earlier patient engagement. The statement stated that the local NHS had a chance to consider the feedback from the process alongside the:

"Unequivocal clinical evidence of the improved outcomes that will be achieved by centralising Upper Gl cancer surgery. Consequently the PCT and RCHT agree that the service at Truro should move to Plymouth as soon as possible, as the first phase of the Peninsula plan to establish a single centre for Upper Gl cancer surgery by 2010. The PCT and RCHT are firmly committed working through the Peninsula Cancer Network to ensuring implementation of the 2 phase of the plan. This will ensure that local patients undergoing curative surgery have the best chance of survival".

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35. PD circulated the draft statement to the RCHT NEDs. None agreed to it and the majority actively declined to accept it. As a consequence PD felt that his position as Chairman of the RCHT Board was untenable and on 10 July he wrote to MP tendering his resignation and making it clear that he did so because the draft statement did not have the support of the NEDs. He suggested that JM, then Vice Chairman, should take over as Chair.

36. On 15 July 2008 the OSC meet. The minutes of that meeting disclosed a substantial number of attendees including the claimant as well as IC and MP. The two latter are noted in the minutes as "notify". We are not clear whether this indicates that they were present or were to be notified of the outcome by means of the minutes. Also present were JM and PC. The issue of consultation over Upper Gl services was discussed and a report from AJ considered. At the conclusion of the meeting the OSC concluded that the Upper Gl proposals, as well Gynecological and Head and Neck cancers, represented a substantial variation in accordance with the Health and Social Care Act 2001 and that the PCT should undertake full public consultation on the principles behind and provision of each service. This was contrary to the position previously expressed by the OSC and the PCT.

37. A few days later AJ wrote to the Chair of the OSC expressing some uncertainty as to the basis upon which consultation was now to take place. She indicated that the PCT was taking legal advice as to determine the basis for OSC asking them to consult. There was a need for clarity on the forum on which the proposals were to be debated and considered. Her letter was copied to the claimant. GM also considered that legal advice would be necessary for the respondent and through their solicitors, the RCHT instructed Counsel to advise. That advice was received from David Lock of Counsel. His opinion was available to the respondent on 30 July. In his opinion, Mr Lock advised that under s.242 of the Act each body to which the duty applied must make arrangements for consultation. His advice, couched in very clear terms, was that the PCT's approach was plainly unlawful. He went on to advise that, in his view, both of the RCHT and the PCT would be acting unlawfully if they attempted to move the Upper Gl services from Truro to Plymouth without prior public consultation. He referred to the case of Fudae v Southwest Strategic Health Authority & Others [20071EWCA Civ 803. This advice was presented to the RCHT Board by the claimant on 5 August 2008 at their meeting. The papers were sent to the Directors prior to the meeting, including a summary in relation to the process of engagement of consultation, it was stated that a legal view had been sought. Part Two papers stated that the Board had been provided with a legal opinion on the issue and this was to be discussed. It was discussed in a Part Two meeting which no representative of either the SHA of PCT were present. The claimant explained that according to the advice that had been received the RCHT were under a duty to take part in the consultation as well as the PCT. This disclosure is relied upon by the claimant as the first qualifying disclosure.

38. It is necessary to turn to a different aspect of the claim. The HCC has laid down a total of 43 core standards to be met by NHS hospitals. These

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include a variety of issues such as learning from incidents, reduction in infection risk, decontamination procedures, supervision and leadership, appraisal and personal development, management of records, professional development, and access to complaints procedure. In 2006/7 the RCHT had declared itself compliant with 13 out of 44 standards. In March 2007 it declared itself compliant in 21 out of 44 standards. At a Governance Committee meeting on 13 March 2008, the extent to which the RCHT was compliant was considered. Its declaration of compliance would be fonwarded to the HCC who might then wish to undertake its own inspection to verify that the Trust was indeed compliant. At that stage the Trust declared itself compliant with at least 34 standards, and anticipated that they would be compliant with all 43 by 31 March 2008. The position was considered by the NEDs at the committee meeting and some concern was expressed by them that the EDs might be being overly rigorous in certain of the specified areas. On 15 March 2008, the respondent declared itself fully compliant with 35 out of the 44 standards as in 2007/8 and fully complaint as at 31 March 2008. In June 2008, the claimant received a telephone call from the HCC inviting him to consider whether the RCHT should reconsider its self-declarations. The claimant gave evidence that he did not regard this as a formal request or an indication that all might not be well. He took no action on the matter and did not report his telephone call to the Chairman or any of the NEDs. Subsequently the HCC visited and inspected the respondent's hospital at Truro. They determined that the Trust was not compliant in 4 of the standards in which it had earlier declared compliance. This was notified to IC in September 2008 some weeks before it was disclosed to the NEDs. There is no evidence that IC immediately communicated the HCC's misgivings to JM or the claimant. The NEDs were informed by MP at a meeting on 25 September, that the standards had been failed. We understand there is an avenue of appeal against the HCC's conclusions but there is no evidence that any appeal was pursued. In the evidence that they gave both PD and the claimant said, had they been in post they would have appealed against the decision.

39. On 15 July 2008 the RCHT Remuneration Committee had agreed to recommend an increase in the claimant's salary of £25,000 pa from £145,000 to £170, 000 pa. This was to be subject to the approval of the SHA. There exists a pay framework for very senior managers in the NHS. In the case of Chief Executives of Strategic Health Authorities, Special Health Authorities, Primary Care Trusts and Ambulance Trusts, this is subject to the approval of the SHA. Strictly, it does not apply to a Hospital Trust such as the respondent, but the proposal was that the increase be approved by the SHA. On behalf of the RCHT, JM wrote to IC on 26 July 2008 seeking approval for the increase. In his letter he stated that under the claimant's leadership a great deal had been achieved, the Trust moving from the bottom of the Healthcare Commission league to a positive accolade of "Most improved Trust'. His performance and development review for 2007/8 was to be regarded as exemplary, he having been the prime driver of the turn-around since the middle of the previous year. The claimant was held in high esteem and the recommendation was that his salary be increased. No reply was ever received from IC to that letter.

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40. On 18 August 2008 Professor Mike Richards, the National Cancer Director, wrote to IC expressing his concerns that Upper Gl services at RCHT were not lOG compliant. He stated that two senior surgeons. Professor Griffin and Mr. William Allum had recently visited the South West and had expressed their concerns about the quality and safety of the service at Truro. He suggested that the two surgeons be invited to undertake an urgent review of Upper Gl services at RCHT. They were so invited and they duly visited Treliske Hospital on 4 and 5 September. Their Report to the RCHT Board was that, after careful examination and consideration, they concluded that the service was safe but was not sustainable in its present form. We interpret this in meaning that there were no unnecessary or avoidable clinical risks to patients undergoing surgery at Treliske, but that since it could not have complied with lOG, due to the reletive small throughput of patients, it could not be sustained. The claimant reported the result of the Griffin Review to the Board on 12 September.

41. In late 2007, the Bromley Hospital NHS Trust determined to commission a report into its governance. Its performance had been poor and recently significantly worse than originally reported to NHS London, the equivalent of the SHA. They considered a review of the management and governance of the Trust was appropriate in order to demonstrate public accountability. The claimant was invited to attend Bromley for interview in connection with the review but did not do so because certain assurances he sought were not met. On 17 December 2007 IC was sent the terms of reference of the Bromley review and was, thus, well aware of the action that was being taken. The terms of reference reported that the Trust had an £87 million accumulated debt from previous years but that for 2007/8 there was a forecast £9 million deficit; assuming that savings of £14 million were achieved. It stated that following the appointment of an interim Chief Executive - after the claimant left - and an acting Finance Director it became clear that in the year 2007/8 the accumulated deficit was likely to be £23 million, £10 million worse than anticipated. The report was anticipated to be available within the space of 2 or 3 months. During the telephone call between IC and PD on 15 February 2008 - already referred to - PD noted IC as commenting that he did not think that "Bromley is an issu6l\ In the event, however, the Bromley Report was not available until September 2008. In early September 2008, two of the Bromley NEDs resigned. It is clear that they had seen, or at least had a clear indication of the content of the Bromley report, felt that they were unable to apologise for their own conduct or for people who they felt had lied to them, and that the report was unfair to the NEDs who were left to bear the responsibility whilst the EDs concerned had resigned.

42. On 19 September, MP telephoned JM concerning the Bromley Report, which by that stage he had seen. He stated that the report was serious and that suspension was inevitable for the claimant and JDB. He commented that the Bromley Report was "one of the most damning he had ever seeri'. There were four former Bromley managers now in post in Cornwall including the claimant. The SHA had a level of concern about the RCHT and were worried about the claimant's behaviour. Notes had

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been prepared for MP in preparation for his telephone conversation with JM. The notes disclosed that the reviews undertaken during December 2007 and January 2008 relating to the time when the claimant was Chief Executive JDB was an ED and Ian Gibbons and Ian Burrows were also Directors, it contained serious issues relating to the conduct, behaviour and competence of the claimant JDB, Gibbons and Burrows. He commented that the report disclosed a number of features including corporate failure of the Bromley Board by all NEDs and EDs and that the Board, as a collegiate whole, was in breach of Code of Accountability for Trust Boards. It had misreported its cash position in returns to the Department of Health. There was personal criticism of the former Chairman and of the claimant and the Senior Executive team. The claimant was criticised for being in breach of the Code of Conduct for NHS Managers and had continued to exude optimism about the Trust's financial position until his departure at the end of 2006. It expressed serious concerns about the leadership, governance and conduct of the Chief Executive and Executive team. The RCHT Board were to be asked to review the Bromley Report and reach a conclusion about it. He stated that suspension with normal practice for the individuals concerned pending an investigation at RCHT, and that in his view this would be the minimum appropriate action at that stage. On 20 September, JM emailed the remaining NEDs, warning them that the Bromley Report was due to be published. Until then he had the feeling that the Bromley Report was a "little local difficult)/' but MP had telephoned him previously to say that it was much more serious and would attract considerable adverse publicity in South London, where Bromley was a challenged Trust, and also in Cornwall where the RCHT found itself with four ex -Bromley people in their senior team. He stated that he had been left in no doubt by MP that there was an implied threat of possible sanctions against them as a Board if they did not "show the necessary leadershiff.

43. The Bromley Report, running to over 150 pages, was published and made available to the RCHT Board who met on 23 September. Varying levels of concern were expressed in the light of the criticism made of the claimant, but the consensus view was that the claimant was doing a good job and that there were no grounds for taking any action against as his current employer. The RCHT Board were due to meet the SHA on the following day.

44. The Board met MP and IC on 25 September. According to the notes, MP indicated that the minimum appropriate action would be to suspend the claimant and JDB. IC expressed the view that the RCHT might be heading towards possible greater corporate failure than Bromley. The NEDs were advised of the decision by the HCC to overturn their declaration of compliance with health care standards. In addition, there was discussion concerning the Bromley report. MP and IC advised the NEDs that in their view the claimant and JDB should be suspended and that a review should be undertaken into the management and governance of the RCHT to ensure that the problems identified at Bromley were not recurring in Cornwall. The advice concerning the claimant was robust although it was left to the RCHT to make the decision to what action to take. After MP and IC left the meeting, the NEDs discussed the way

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forward feeling very much under pressure from the SHA. Following the meeting, JM spoke to the claimant and explained the position to him and invited him to take "special leavd' for the time being. The claimant reluctantly agreed to do so and ceased all duties with immediate effect.

45. During September a number of other issues of concern came to light. At a performance meeting on 11 September it emerged that a total of 20 MRSA infection cases had occurred within the Trust and WS advised that the financial performance was giving cause for concern. There was an unexpected variation from plan which represented a worst-case scenario £6.4 million deficit against a current forecast overspend of £1.9 million.

46. The Bromley Report was published and RCHT issued a press release the same day, announcing that a joint independent review had been announced by the RCHT Board and the SHA. The release stated: -

'This follows the publication of a report into financial management and governance at Bromley Hospitals NHS Trust London this afternoon. This investigation was undertaken after it was discovered that the Bromley Hospitals NHS Trust found itself with a £23 million in year deficit (£10 million worse than reported) and an accumulated debt of £87 million. The review covered the period 2003 to 2006. The former Chief Executive and three former Directors from Bromley Hospitals NHS Trust are now employed at the Royal Cornwall Hospitals NHS Trust. In view of the serious issues raised in the report, the Southwest Strategic Health Authority and the Royal Cornwall Hospitals NHS Trust have today jointly launched an immediate review.

The joint review will be undertaken by an independent team and will consider whether the issues of competence and behaviour highlighted in the Bromley Hospitals have in any way occurred it the Royal Cornwall Hospitals Trust. The joint review will also clarify whether the Royal Cornwall Hospitals financial management and governance arrangements have been and remain appropriate.

John Mills, Chairman of the Royal Cornwall Hospitals NHS Trust, said, "Our dedicated staff continues to provide higti quality care for patients. The Board, liowever, tias to be confident that the serious management issues raised in the Bromley Report are not happening in this organisatiori'.

47. The claimant criticises the press release in that it refers to him directly and refers to a £23 million in-year deficit which, by implication, referred to the period up to the publication of the report. He had, of course, not been in the service of Bromley since December 2006 and could not, therefore, have been responsible for any subsequent deficit. In view of the stance taken by MP and IC, the NEDs concluded that the appropriate course would be to suspend the claimant, but the Chairman, JM, took the view that this could only be done following a properly constituted Board meeting, hence the fact that he invited the claimant to take special leave with immediate effect. During the course of the discussion with MP and IC, MP is noted as having said that he heard a lot of protectionism and defensiveness around the table. The job of the NEDs was to challenge the status quo and he observed that no one had said that they were worried about the Bromley Report. He said he had to ask the question whether this was the right Board to lead the change. The claimant invites

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us to say that this is a clear indication of great pressure being putting on the NEDs to change the view they formed about the support for the claimant in the light of implied threats that they might themselves be removed. On 8 October, the RCHT Board met and formally decided to suspend the claimant. He was so notified.

48. On 30 September before being formally suspended, the claimant wrote to JM. It is a lengthy letter in which he indicated that he had no issue, in principle, with an independent review being carried out at RCHT subject to a fair procedure being followed. He stated: -

"Whilst I have no issue with an independent review being carried out at RCHT, subject to fair review procedure being put in place, I believe the juxtaposition of the above comment in the press release by RCHT [this refers to the comment that he and three former Bromley directors were employees of RCHT] and action taken against me to be defamatory".

He went on to state that he had already written to Mr Alderman, Chairman of Bromley, pointing out the deficiencies in the Bromley review process and setting out his written rejection of the critical findings made of him. He had seen a draft report on 10 April and had subsequently written seeking to refute the criticisms against him. His letter continued:-

"With regard to the meeting tomorrow [where it was intended that his suspension was to be discussed] l can see no good reason for suspending me from my current role. Whilst suspension is not a formal disciplinary sanction, it gives rise to extreme negative suspicion and, given the tenor of the press release, can only cast doubt on my integrity. This is something I cannot allow.

I have done nothing wrong. Suspending me cannot only damage my reputation, in breach of your legal obligations to me, but also that of the trust and the good work carried out at the Trust under my leadership. This is widely publicised in the press and acknowledged both at Union and Government level".

His letter concluded:-

"Finally, I wish to place on record that I have very significant concerns that this activity of the SHA/Board is not for the reasons stated, but as a direct consequence of my support for the former Chairman Peter Davis's drive to retain cancer services at RCHT, and his refusal to sign the joint statement on Upper Gl cancer services which, given the position of the SHA resulted in his resignation.

It has, up to now, been the clear desire of the Board, supported by the public, to retain cancer care services. This has been opposed by the SHA as it wished to implement the plan to centralise such services outside Cornwall without consultation. Given the "competing" interests, on behalf of RCHT I took advice from a specialist constitutional Counsel who advised RCHT would be in breach of their legal obligations if they failed to consult. I advised the Board of this opinion. My request for proper consultation to comply with our legal obligations and support for the initiative for the provision of better cancer care services to the local population supported by the doctors and public that oppose by the SHA is, I believe, the real reason for the current action being taken against me".

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49. On the same date, 30 September, a meeting was called of all the senior medical and dental staff to discuss the claimant's position. DB gave evidence that at this meeting there was overwhelming support from the clinicians for the claimant and they expressed concern that he had been suspended.

50. On 3 October 2008 the Board held a Part Two meeting and agreed the terms of the independent review. DB presented a statement from senior medical staff supporting the claimant. The terms of review were set out that the review would:-

Conduct a due diligence review of the performance of the RCHT.

Assess the Trust's management and corporate governance arrangements and the effectiveness of the Trust's risl< management and assurance processes.

Examine the governance arrangements and decision-making process to ensure the information to provide it to the Board is accurate and complete and mal<e any necessary recommendations to ensure that RCHT operates fully in accordance with the Code of Accountability for NHS Boards.

Identify any actions for improvement in management reporting processes and corporate governance arrangements, taking into account the findings of similar, recent or concurrent work, including that by internal and external auditors.

Take account of the Code of Conduct for NHS Managers and other professional codes of good practice and make recommendations on areas for action to improve the Trust management and corporate governance systems".

51. The meeting directed that the review be undertaken expeditiously and was to report to the Boards of the SHA and RCHT by no later than 28 November, but every endeavour should be made to deliver the report before then. The review panel was appointed under the chairmanship of Professor Ruth Hawker. On 17 October she wrote to the claimant advising him of the terms of the review and of the review procedure. The claimant indicated his willingness to partake in the review, subject to the issues of fairness and neutrality. He stated that he considered that there was much in the Bromley Report, which was inaccurate, and that he was proposing to pursue his legal rights in respect of any damage to his reputation. He warned that any repetition of defamatory material concerning him and contained in the Bromley Report would render her or those under her control liable to defamation proceedings. With regard to the RCHT review, he stated that the ostensible reason was the publication of the Bromley Report, but that, in his view, the real reason was to enable RCHT and SHA to find grounds to take disciplinary action against him because of the advice over consultation. In cooperating with the review, he indicated that he would require to be accompanied at any meetings, given notice in advance of the areas and subjects to be covered together with the appropriate papers and given access to the Directors prior to any meeting to obtain an up to date briefing from them. Professor Hawker replied that she did not accept that the purpose of the review was for anything other than to review the governance of the Royal Cornwall Hospital and not in any way directly connected with Upper Gl services. Whilst she agreed his requirements to be accompanied and have copies of papers etc

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beforehand, she was not prepared to agree that he should have access to Directors. In due course, the claimant attended for an interview by the review panel on 7 November 2008.

52. On 30 October 2008 the RCHT Board met and considered a number of issues including the HOC report. One issue was infection control and it was decided that a microbiologist be appointed. There was also the prospect that the Trust might be reporting their financial deficit in the near future, since some of the departments were not keeping within budget. The need for firmer control was emphasised. With regard to Upper Gl, the acting Chairman stated that in principle the Trust had always supported the single centre in Plymouth. Reviews were being carried out by Professor Griffin and Mr Allum in Derriford and Exeter following which it was anticipated there would be a consultative document issued in the New Year with the hope and the expectation that the single centre would be in place by the Spring. The acting Chairman said that he wished to be satisfied that a new centre would be lOG compliant.

53. On 27 November 2008 the claimant issued his first Tribunal claim against the respondent. In this, he set out his version of events and stated, inter alia:-

'The claimant, in view of the publicity, Mr. Davis's resignation and in carrying out his duties was concerned to ensure that RCHT complied with its legal duties. It was his belief that there was a legal duty to consult with stakeholders in the decision as to whether the cancer services should remain or be transferred out of Cornwall. His belief was sufficient to seek legal advice on behalf of RCHT from the specialist health care solicitor's firm, Mills and Reeves. Their opinion was that RCHT had a legal duty to consult with the relevant parties and it would be illegal not to undertake a proper consultative process. The claimant advised the Board of RCHT in good faith of this legal duty on or about August 2008. The claimant, therefore, made a qualifying disclosure pursuant to s.43B(1)(b) and/or (a) and/or (d) ERA and that the qualifying disclosure was reported in accordance with s.43(c) ERA.

The claimant's disclosure ran counter to the objectives of the SHA and in the claimant's belief following the resignation of Mr Davis, the RCHT became subject to the influence and wishes of the SHA"

Later he went on:-

"As a result of his protected disclosures the claimant has suffered detrimental treatment in respect of unfair publicity, informal suspension, subsequent formal suspension on 2 October 2008 and being subject to an independent review process. It is also of note that an interim CEO has been appointed by RCHT who is a former CEO of South Devon Foundation Trust.

The Bromley Report was not a good a reason and/or was not the reason for the claimanf s suspension. The claimant was seen by SHA as hindering their objective to centralise cancer services away from Cornwall without entering into proper consultation. It is and was the claimant's reasonable belief that this would be in breach of RCHT's legal obligations and he reported this. In addition, subsequent actions taken against the claimant personally are in his reasonable belief a breach of the respondent's legal obligations to

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him. RCHT acting by itself or at the direction of the SHA subjected the claimant to detriment. The claimant pursuant to s.49(1)(a) and (b) seeks a declaration that his complaint is well founded and an award of compensation"

54. JP told US that the SHA were aware of the ET claim, which was served a few days after the presentation. It would not have gone directly to the SHA but she said that JM told her that he had spoken to the SHA to advise them of the claim. She could not recall if JM said he had shown a copy of the claim to the SHA. She did not know when the SHA might have first seen a copy of Counsel's opinion but she did not believe that they were unaware of it by 17 February 2009. She said she assumed that JM would have spoken either to MP or to IC.

55. On 22 December Messrs Capsticks, solicitor's to the review, wrote to the claimant to advise them of their appointment, and indicating that he would be given an opportunity to review the relevant sections of the report with regard to their factual content and commenting on them before being given an opportunity at a later stage to view the entirety of the report, when, again, he would have the opportunity of commenting. The process was to be confidential at that stage.

56. On 23 December the claimant's solicitors wrote a letter to IC, copied to MP and JM. This was a letter before action indicating the claimant's intention to pursue a claim for libel against him, based on the contents of the press release and seeking a retraction, apology and compensation. On behalf of the respondents, their solicitors rejected the applications; alleging that the issue was covered by qualified privilege and, in the event, no proceedings were ever issued.

57. Prior to the publication of the report, the NEDs had two meetings with the SHA. One was before Christmas in London and the other in February in Taunton. It is surprising that no notes or minutes of these meetings exist or have been made available to the Tribunal. IC and MP were present at those meetings. Amongst the topics discussed was the difficulty in recruiting a microbiologist to deal with infection control issues at Treliske hospital, but the only discussion about the report was as to the procedure that it adopted rather than the content of the report. The evidence we had from RE and RG was that the claimant's name and position was not discussed at either of those meetings.

58. On 22 January 2009 the RCHT Board met and discussed its financial position. Advice from the Director of Finance was that the savings requirement of £21 million was not achievable in 2009/10, and the Trust faced the prospect of being moved into the "seriously challenged category'. On the same date, a first draft of the review panel report was sent to the claimant's solicitors, Messrs Edwin Coe. They responded by asking for additional documents to enable the claimant to respond. The claimant responded further through his solicitors under cover of a letter dated 17 February 2009 ("the rebuttal letter") in which he set out in detail his observations on the report. He was critical of the report and its conclusions in many respects, which, through his solicitors, he dealt with paragraph by paragraph. In this, he made numerous points whereby he

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challenged the conclusions that the report purported to reach and the factual basis underlying them. There were many aspects where he asked the report authors to consider further documents and to make further enquiries to confirm the issues that he was raising. Examples of these issues - and they are only examples and not an exhaustive list - are:-

i. That the figures quoted in the Bromley Report did not relate to the entirety of the period of the claimant's tenure.

ii. That the panel should obtain confirmation from WS that the external support of some £7 million was non-recurring and adjust their report accordingly.

iii. That difficulties referred to in the report predated the claimant's arrival.

iv. That the issue of payroll system and control of weakness was to be addressed by the Director of Human Resources. The current status of the audit into this fell after the claimant's suspension and it should be reviewed.

V. The report did not fairly balance the performance under the claimant's tenure in relation to health HCC ratings and the panel were requested to review the matter.

59. The above is no more than a very brief selection of the issues that the claimant raised. The rebuttal letter, to which reference may be made, is lengthy and detailed On behalf of the claimant, his solicitor subsequently raised this matter with Messrs Capsticks. They were advised that it was proposed that initially the claimant would have the opportunity of viewing the sections of the report, which related to the factual context on which the panel based its conclusions and recommendations, but at that stage he would not have the opportunity of viewing the summary or recommendations and conclusions. At the second stage once, the panel members had considered the responses they would finalise the report and the claimant would then be invited to view the entire report and respond to any criticism of him. He was required to sign a confidentiality agreement before being afforded the opportunity of viewing the report. It was proposed that the claimant, who lived in Truro, should attend the solicitor's offices in London for the purpose of viewing the report. The claimant's solicitors objected to this on the basis that it was hardly practicable for him to attend in London for this purpose, particularly as comments were initially required by 5 January. They suggested that the claimant be provided with a written copy of the factual content of the report and in due course a copy of the draft report. Messrs Capsticks responded, suggesting that the claimant and his representatives should either attend their office in London or attend offices in Cornwall. The factual content of the report ran to some 14 pages and they considered an hour would be enough to read this and consider it. On behalf of the claimant, his solicitors responded saying that whilst he was agreeable to giving a confidentiality undertaking, he required to have a copy of the draft report in order to be able to consider it carefully and respond. In further

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correspondence Mrs Capsticl<s suggested that there was a third alternative which was available, namely that the panel would provide the claimant and his solicitor with two copies of the report subject to their undertaking that neither party would copy the report and that both copies would be returned within 7 days, together with the claimant's comments. Eventually this was agreed and the claimant was supplied with two copies of the report. On his behalf, his solicitors responded on 29 January with a response to the draft report. Again, this is a very lengthy document to which particular reference must be made if required. Sufficed to say that the claimant took objection to a considerable number of the statements set out in the draft report, on factual issues. The claimant criticizes the procedure by which the report was made available saying it was obstructive and appeared to attempt to deny him an adequate opportunity to respond.

60. On 9 February Mrs Capsticks wrote to the claimant's solicitors with a copy of the final report in draft form. To this, the claimant responded on 17 February through his solicitors with the rebuttal letter.

61. On 5 March 2009 the report, running to 28 pages, was published. Its main finding was that the RCHT Board was in breach of the Code of Accountability, that although financial improvements had been made it was still off financial targets and had a loan of £48 million to the Department of Health. Too little reliance had been placed on financial management and an over confident and unrealistic picture had been presented. It concluded that the Board and claimant had not followed the spirit of the Codes of Conduct for Boards and senior managers and that there had been an erosion of trust between the respondent and the PCT over Upper Gl services. It recorded that the HCC had overturned five of the self-declared standards that it reviewed saying that this was very unusual. It recorded that the claimant had little difficulty in saying "Yes" but more difficulty in saying "No" when issues arose and that there was a lack of leadership over the Upper Gl issue. It recorded that the management style was to present an over confident picture of its achievements and, although there had been an improvement in the year 2007/8, the direction of travel of the leadership and management of the respondent was towards corporate failure. It made 27 recommendations relating to financial management and performance, strategy and business planning and as to the management and leadership, including whether the NEDs should have the purpose and ability to challenge the EDs constructively. On the same day, 5 March, the RCHT Board held a Part Two extraordinary Board meeting to discuss the Hawker Report. Its conclusion was that those present voted unanimously to accept the recommendations and a majority voted to accept the conclusions. Following the meeting DB resigned. In evidence to us he said that he could not accept the conclusions, although he agreed with the recommendations. He felt that since the other Board members have voted to accept the review and he would be isolated; he chose to resign. There is no evidence that in making the decision to accept the recommendations the Board were aware of or had any regard to the rebuttal letter.

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62. Following the meeting of the Board a decision was made to convene a "trust and confidence meeting which the claimant would be invited to attend. We have no precise evidence as to how the decision was taken to convene the trust and confidence meeting, but it seems at least possible that this was decided by JM, the Acting Chairman.

63. The claimant was invited to attend the meeting by letter dated 10 March 2009 The meeting was due to have been held on 17 March but had to be rescheduled for various reasons until 15 April at a Hotel in Truro. The letter stated that the meeting would be conducted by two NEDs; namely RG and PW. The letter stated that:-

'The panel will consider the findings in the independent review of management and governance. These findings were sent to you on 10 March 2009.

The report states that paragraph 98 as follows:-

It is the opinion of this review that, on balance, that whilst there are examples of good management from the exploration of the Trusts history during 2007/8, neither the Trust Boards throughout that period nor the Chief Executive have achieved the overall standards of management and governance expected of a public service organisation like the RCHT, specifically in terms of the provision of information to the Board, the development of basic management systems and processes, and partnership working of sufficiently sustainable trust and depth. It is therefore the opinion of the review that the Trust Board and Chief Executive have failed to sufficiently follow the spirit of the Codes of Conduct for NHS Boards and managers".

The report condudes:-

"It is of the opinion of the review that although some improvements took place in 2007/8 the direction of travel of the leadership and management of the RCHT Trust is towards corporate failure.

In coming to this conclusion, the report makes detailed findings about financial management and perfomriance strategy and business planning and Trust management and leadership. Examples of criticisms of your leadership are contained in paragraph 53, 54, 86 and 88. At the hearing you will be given a full opportunity to comment on these and other findings in the report together with the conclusions reached by the review team".

The claimant was advised that he might bring a fellow employee or friend, not acting in a legal capacity. He was warned that if the decision was reached that trust and confidence had broken down, one option that the Board would consider was the termination of his employment.

64. Prior to the meeting, a number of questions were drafted by JP for the panel to put to the claimant. The claimant duly attended the hearing attended by his friend and representative, Mr Graham Webster. JP was present as adviser to the hearing panel together with a note taker. It is clear from the record of the hearing that to a considerable extent the claimant responded to the questions being put to him by referring to his remarks in the rebuttal letter. Although the respondents made efforts to try and encourage him to expand on his answers, he was reluctant to do so. It might have been better for the claimant had he been more prepared to

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engage more fully with the panel, but, in large measure, he referred to the comments he had made inviting the panel to investigate them before reaching a conclusion. We did not hear evidence from PW, only RG. At the conclusion of the meeting neither RG nor PW took steps to seek to investigate the points that had been raised by the claimant. Following the meeting, overnight they prepared a report and summary of their discussion with the claimant. They stated that it was their conclusion that there was an untenable position in terms of the continued employment relationship between the claimant and the RCHT Trust Board. The panel concluded that as relations had broken down there could no future employment relationship between the employee as CEO of RCHT and the Board. It was the express recommendation that the Board consider that there is a relationship breakdown and recommended that the employment terminated under dismissal with contractual notice of 6 months pay.

65. Unknown to the claimant the Board had arranged to meet on the following day on 16 April. Although still nominally a member of the Board, albeit under suspension, the claimant was not advised of the meeting. A number of NEDs elected not to attend for various reasons. These included PW, MW, the Chairman, JM and several of the EDs. According to the minutes the acting Chairman stated that the purpose of the meeting was to receive and consider the report of the hearing meeting panel which had taken place on 15 April 2009, which had been convened to consider whether there had been a breakdown in trust and confidence between the claimant and the Board. We have no evidence when or by what method the meeting had been convened. Normal practice would have been for papers relating to the meeting to have been circulated beforehand, but on this occasion the papers were handed to the members as they arrived. Those papers included the summary report prepared by the panel, the full report they had prepared, the documentation questions and the rebuttal letter. A number of issues were discussed but, in his evidence, DW stated that although they had the rebuttal letter before them, they did not look at it in detail. One of the issues that were discussed was the fact that the claimant had already brought his claim to the Tribunal of having made a protected disclosure. It was anticipated that if the Board accepted the recommendations of the panel that the claimant might bring an unfair dismissal claim, but it was observed that the claimant did not accept that the relationship between the parties had broken down or that, if it had, he accepted any of the criticisms of himself. The conclusion of the Board was that the claimant should be dismissed forthwith and he was so notified by letter dated 21 April. He was advised that he would be paid in lieu of his contractual notice period of 6 months and that he had a right of appeal.

66. The claimant exercised his right of appeal and in due course an appeal hearing was arranged to take place on 26 June. In view of the fact that the decision to dismiss the claimant had been taken by the Board as a whole it was considered appropriate to convene a panel of NHS Directors from outside the RCHT. In due course the appeal panel consisted of Mr Andrew Willis, a non-Executive Director of Taunton and Somerset NHS Foundation Trust, Tony Barron, Chairman of NHS Wiltshire PCT, and Mrs Linda Nash, Chairman of Somerset Partnership NHS Foundation Trust. The letter convening the appeal hearing stated:- "The appeal will be by

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ivay of a re-hearing". The claimant was provided with copies of the review report, the trust and confidence hearing notes questions of 15 April, his appeal letter and the rebuttal letter. He requested copies of the minutes of the meeting on 5 March and 16 April be made available, but these were not made available until the commencement of the appeal hearing itself.

67. The claimant duly attended the hearing accompanied by Mr Webster. Again he reiterated the points that he had raised in his rebuttal letter regarding the Hawker review. Following an adjournment MW was invited to attend the meeting and give evidence. Although he had previously resigned as a NED he had been reappointed as Chairman of the RCHT Board by the Appointments Commission on 17 March 2009 i.e. after the RCHT Board had resolved to accept the Hawker Report. In answer to the questions from the panel, MW said that he had been aggrieved that he had felt it necessary to resign over the car park issue and made various comments on the content of the Hawker Report. At one point during the discussion, he was asked if he felt that there was any relationship between the claimant and the Board, which could continue, to which he replied that he thought there would be no confidence; in that the Board had lost confidence In the claimant and the situation would not be at all tenable.

68. The panel produced its report following a resumed hearing on 3 July 2009. It recommended that the dismissal be upheld and the appeal was rejected. In their report the panel noted at paragraph 2.2:-

'The appeal was conducted on the basis of a re-hearing of the original dismissal hearing panel on the 15* April 2009 (original hearing) which the panel understands recommended to the Board the dismissal of the Employee on the basis that the actions of the employee had lead to a breakdown in trust and confidence".

In paragraph 6 it set out its findings as follows:-

"6.1 The panel noted that during the period 1^ January 2007 and the 17"" April 2009 the Board composition varied significantly. In particular, several non-Executive Directors had resigned during the period January to June 2007. The Board had more consistent leadership from the summer of 2007 to July 2008 when significant instability and leadership reemerged.

6.2 It was the panel's view that the test of whether the Board had trust and confidence in the employee should be applied to the state of affairs in the months September 2008 to April 2009 (relevant period) being the months leading up to the decision. For completeness, the panel also identifies the evidence presented for the period from summer 2007 to July 2008 as several Board members served during that time and the relevant period.

6.3 The panel heard evidence to suggest there had not been a breal<down in trust and confidence between the Board and the employee in the period summer 2007 to 2008 as evidenced by [here they refer tO various factors including at 6.3.5] :-

6.3.1 The Chairman of the Audit Committee of RCHT (Roger Gazzard) also indicated that prior to October 2008 he had no concerns with the employee but he did identify concerns with the deteriorating financial performance of RCHT (April 2008 onwards) and discomfort that several standards in the

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Healthcare Commissions annual assessment had been overturned on inspection in April 2008.

6.4 In contrast the panel is of the view that in the relevant period there was a breakdown in trust and confidence between the employee and the Board for the following reasons:-

6.4.1 As referred to in 6.3.6 [We think this must be a reference to 6.3.5 since there is no 6.3.6], deterioration in financial performance and the challenge of the Health Care Commission Annual Declaration in April 2008 undermined Board confidence in the employee;

6.4.2 The panel received evidence from RG that the publication of an Independent External Review (Fielding et el 25* February 2009) (the report) and its assessment that RCHT was heading towards corporate failure, raised significant concerns with the Board:-

6.4.3 The Board has fully endorsed the 27 recommendations of the report. On the evidence presented by the employee, although supportive of some of the recommendations of the report, the panel believes the Board would have limited trust and confidence in his ability to implement all the report's recommendations. This is reinforced by the employee's belief that the report is flawed as to accuracy (employees rebuttal letter from Edwin Coe dated 17* February 2009).

6.4.4 The panel considers that the issues of reconfiguring the provision in Upper Gl cancer services in the South West has also contributed to a deterioration in trust and confidence between key stakeholders (for example the South West Strategic Health Authority and RCHT) and consequently, the impact of these damaged relationships has lead to an irretrievable breakdown in trust and confidence between the Board and the employee in his ability to lead an organisation in the South West Health Economy.

6.4.5 For the reasons set out above the panel believed that it was appropriate to dismiss the employee on 17 April 2009 as there had been an irretrievable breakdown in trust and confidence between the Board and the employee.

6.4.6 In addition, the panel notes the passage of time spent by the Board in resolving the above issues (as highlighted by Peter Davies and Roger Gazzard). And the belief expressed by the present Chairman, Mr Martin Watts, that they had little confidence of the employee and their ability to work together in the future leads the panel to conclude that a return to a sustainable and positive working relationship between the employee and the Board is not practicable".

69. On the above basis the appeal was rejected. It will be noted, however, that with the exception of a few days the relevant period identified by the panel coincided with the period of the claimant's suspension when he was removed from the work place.

70. On 27 April the OSC held a committee meeting in Truro. Although the Chief Executive of the RCHT was not a member of that committee, he

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would normally have attended in that capacity, as indeed did PC, the acting Chief Executive. Had he been in post the claimant would have attended. It was anticipated that the issue of Upper Gl cancer services would be discussed. The minutes of the meeting record the fact that in November 2007 the OSC had decided that the transfer to Derriford did not constitute a substantial change requiring consultation. The minutes recorded that, in the light of significant public concern, the matter had been reconsidered and the view had been formed that the proposals did represent a substantial change into services and the joint committee had been formed in order to deal with the issue of consultation. Subsequently it had been concluded that the sen/ice provided by RCHT was no longer sustainable. At the conclusion of a lengthy discussion, the OSC concluded that the proposal to establish a centralised Upper Gl service at Derriford did not represent a substantial change to the services with the services carried out at RCHT and the RD&E being transferred to Derriford. The committee was satisfied that the PCT had undertaken appropriate public engagement and listened to the feedback and the decision on this issue was thus reversed.

71 .That is sufficient account of the factual circumstances of this case.

Submissions

72. We received lengthy submissions from both parties. Both Counsel spoke at length to their submissions. Reference can be made to them as

desired.

Conclusions

73. In all respects, the conclusions of the Tribunal are unanimous.

74. Given that the claimant puts his case on two bases, namely dismissal and detriment for having raised public interest disclosure and unfair dismissal on ordinary principles, it is appropriate to address the question of the respondent's reason for dismissing. The respondents case is that the claimant was neither dismissed nor subjected to a detriment for having made a public interest disclosure, but that he was dismissed because there had been a breakdown in trust and confidence between him and the Board, rendering his position untenable. The argument advanced by Mr Devonshire is that dismissal for such a reason would fall within the category of "some other substantial reasorf as to justify dismissal and he invites us to say that the claimant was not dismissed as a result of having made a public interest disclosure. We do not lose sight of the guidance given in 'Kuzel'. namely that it is for the employer to establish its reason for dismissal but that if claimant alleges that he was dismissed for an inadmissible reason, such as a public interest disclosure, it is for him to lead some evidence to support that suggestion.

75.. As has already been indicated it is noteworthy neither IC, MP nor JM have been called before the Tribunal to give evidence despite the Tribunal having raised this point with the respondent. We can accept that the contents of the Bromley Report raised concerns in the minds of the SHA

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as to the claimant's position now that he was he was employed by the RCHT which itself had had a poor management and financial history in recent years. The issue of Upper Gl services was extremely contentious and had attracted much public comment and criticism. It is clear from the remarks made by IC at the meeting in May 2008 that extremely strong views about the proposal to transfer all such services to Derriford. It is noteworthy that a consultant surgeon present at the meeting took detailed notes in which IC was recorded as having said, in effect, that it did not matter what actions were taken over consultation etc. the plan would ahead in any event. We have to say that this is an extraordinary state of affairs. The attitude taken by the OSC and the PCT at that stage was that there was no requirement to undertake any significant consultation other than dissemination of information, although, we do not think their views were quite as forcefully held as IC's. In August 2008, the claimant tendered advice to the Board in the form of Counsel's opinion, that there was a duty on both the RCHT and PCT to consult. The publication of the Bromley Report would have undoubtedly have caused the NEDs to consider the claimant's situation as an employee of the RCHT. There was criticism of him in the Bromley Report - although the claimant disputes it -but the Board's initial view was that if there had been any failings on his part at Bromley there was no reason to think that they were replicated in the RCHT and there were no grounds for taking action against him. Those views were reversed immediately and totally following a meeting on 25 September with IC. The SHA made it clear that they wished there to be an independent review into the governance of the RCHT, questioning whether the Board had confidence in the claimant. The outcome of this was that the claimant was invited to take special leave before formally being suspended at the beginning of October 2008. It is the view of the Tribunal that this volte-face on the part of the RCHT Board was in response to clear and strong pressure from the SHA.

76. The claimant was aggrieved at this and at the subsequent press release. This led him to issue his first Tribunal complaint on 27 November 2008. We are satisfied that this came to the knowledge of IC and MP. The claimant also threatened libel proceedings, although these were never formally issued. We had evidence that two meetings took place to discuss the draft of the Hawker Report, such meetings taking place in Taunton in late 2008 and London in February 2009. The evidence we had was that there was discussion about the appointment of a microbiologist but no discussion about the contents of the report, simply the process. We have to say we find it impossible to accept this. It defies belief that there could have been no discussion about the content of such a contentious report. When the report was finally made available to the respondents at the beginning of March it was instantly accepted without any reference to the claimant. Given the claimant's position as the Chief Executive and the implications that the report had for him it is extraordinary and highly unsatisfactory that its conclusions and recommendations were accepted with such alacrity. In our judgment, that is a very telling circumstance. The Trust then decided to pursue the issue with the claimant through the medium of a trust and confidence meeting. The claimant was subject to a Code of Conduct for NHS Managers and his contract of employment. Although it was not incorporated into his contract of employment the

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respondent has a disciplinary policy which we have not seen. We have no doubt that it would incorporate the usual provisions that such a procedure would involve, including procedures for dismissal for conduct and/or capability. The claimant's contract at paragraph 11.6 provided for immediate dismissal, if the claimant committed acts of gross misconduct or conduct which might cause the RCHT or the NHS to be brought into serious disrepute. Depending on the circumstances of any particular case, there may be a fine distinction to be drawn between a breakdown in trust and confidence and issues of conduct or capability. Either might arguably lead to a breach in trust and confidence but the basis upon which the respondents took the action against the claimant was a breach of trust and confidence and neither conduct nor capability. The claimant was invited to a meeting on 15 April, albeit that he did not know that the Board was to meet to consider the panel's recommendations on the following day. We have to say that the claimant did himself less than justice in failing to engage fully with panel when asked questions, preferring to rely on the contents of his rebuttal letter. It would have been better if he had been more forthcoming, but nevertheless, his rebuttal letter makes it clear that there was a myriad of issues upon which he invited further investigation and consideration. None of these were taken up by the panel. It would have been impossible for them to have done so by the following day. A basic tenet of fairness in employment procedures must be that the employer will invite the employee to give his explanation of his perceived shortcomings, whether as to conduct or capability or touching on trust and confidence. Having received those, a reasonable employer would take steps to investigate them and consider the issues that have been raised before reaching a formal conclusion. That was not done, either by the panel or by the Board on the following day. The evidence, which we accept, was clearly to the effect that the Board took no account of the rebuttal letter in reaching their decision to dismiss. That was unfair.

77. It is well settled law that although there may have been unfairness at the initial stage of the disciplinary process, an appeal may be sufficient to cure that unfairness; whether or not it does so depends on the circumstances. We have given careful thought to the question as to whether or not the appeal did so in this case. We regret to say that our unanimous conclusion is that the appeal was a travesty of anything approaching basic concepts of fairness. It was expressed to be a re-hearing of the original decision. Manifestly that was not so. There are two glaring matters which lead us to this conclusion. First of all, the panel identified the relevant period as being the period covered by the claimant's suspension. Whatever he might or might not have done during the period up to his suspension, he could scarcely be held responsible for events which occurred aftenwards and it is in relation to this period of time that the panel reached its conclusion that there had been a breakdown in trust and confidence. Secondly, the panel interviewed MW. He had resigned shortly after the claimant had been appointed, citing his deep dissatisfaction with the claimants appointment. He was reappointed as Chairman of the Board in March 2009. His views, very firmly expressed, were that there was a breach of trust and confidence and a complete breakdown in the relationship between the Board and the claimant. It is clear that this was a significant factor in the panel's decision to recommend that the decision to

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dismiss be upheld. How this equates to a re-hearing of the original decision entirely passes our understanding.

78. The requirements of the Employment Rights Act, in this respect, are that the respondents shall establish its reason for dismissing the claimant and that once that has been done the Tribunal has to consider whether the dismissal was fair. We address that issue. Our conclusion is that for the reasons we have expressed the claimant's dismissal flew in the face of any concept of fairness, whether considering the dismissal of any employee, be he the most senior or the most junior. The claimant was appointed at a time when the RCHT was seriously challenged and subject to intense criticism both from the public and from the SHA over a variety of issues. His case is that he had done much to turn its fortunes around and we cite as one example the confidence that he had engendered in the clinical staff. We do not suggest, and nor does the claimant suggest, that he had solved every problem, but he was making substantial progress. There were serious issues still to be resolved. A fair-minded employer would have investigated the issues that he raised and taken them into account, giving them careful consideration before reaching a decision. Patently that was not done. The procedure adopted by the appeal panel was vastly removed from anything which might have been considered capable of rectifying that defect.

79. What was the reason for dismissal? In our judgment the criticisms that we have put forward as to the procedural fairness, may shed light on the respondent's true reason for dismissing the claimant. We think there is significance, as argued by Miss McCafferty, in the fact that the OSC were due to meet on 27 April to reconsider the issue of consultation. Through IC, the SHA had expressed its determination to ensure that the transfer of Upper Gl services to Derriford went ahead come what may. Those views had been expressed in very forceful terms. The SHA through MP and IC had expressed serious criticism of the claimant. In our view, the claimant's action in tendering the advice to the respondent on 5 August was a severe irritant to the SHA's intentions. In our judgment it amounted to a protected disclosure in that if the RCHT proceeded without consulting they would, at the least, be likely to breach their obligations under the legislation. With the claimant in post, he could have been expected to have repeated the advice that he had been given by Counsel. Had he not been dismissed on 16 April 2009, there is every reason to expect that he would have resumed his post as Chief Executive and attended the OSC meeting on 27 April. Had he done so, he would undoubtedly have reiterated the advice thus presenting a further obstacle to the SHA's plans to transfer the services.

80. The speed and incompetent manner in which the claimant's dismissal was handled sheds light in our judgment as to the respondents reason. The first question we have to ask ourselves is whether the respondent has proved, on the balance of probabilities, its averred reason for dismissing the claimant as being a breakdown in trust and confidence. It is undeniable that the relationship was damaged but we point to the fact that on 24 September 2008 the NEDs had concluded that there was no cause for any action to be taken against the claimant. Despite the availability of HR advice when the Hawker Report was forthcoming, the claimant's

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response was ignored. Given the issues he raised we do not think any reasonable employer would have reached the conclusion that there had been an irretrievable breakdown in trust and confidence without further investigation. In our judgment, the respondent has not established its reason for dismissing the claimant. Could we, then, draw the inference, that if the respondent has not proved its reason, the reason must be that contended for by the claimant? It is clear from "Kuzel" that it does not necessarily follow that we must do so. Having regard to all the circumstances which we have set out, we have come to the unanimous conclusion that we could and do draw the inference that the reason for the claimant's dismissal was due to pressure brought to bear on the RCHT by the SHA and that the reason for that pressure was the claimant's stance over the issue of consultation. We are satisfied that when they took that decision that reason was known to the RCHT Board. Put shortly, he was to be got rid of. We find that the claimant was dismissed as a result of having made a protected interest disclosure, and that the dismissal was automatically unfair for that reason as well as being unfair under ordinary principles for the reasons set out above.

81. We have considered whether or not the claimant was subjected to a detriment as a result of having made his protected disclosure in his letter of 30 September. First of all, the requirements of the Employment Act 2002 were still in force in September 2008 whereby the claimant was had to raise a grievance in writing at least 28 days before issuing his claim of detriment. We find that he did so in that his letter was sufficient for that purpose. The respondent disputes that that letter did contain a protected disclosure but it is clear from the wording that the claimant stated then his view, his suspension was a breach of their legal obligations to him. We are satisfied that he made those allegations in good faith and that they amounted to a qualifying disclosure. We are satisfied that he had a reasonable belief that the respondent had breached its obligation to provide reasonable support and, in particular, not to publish incorrect or damaging material about him. In that that was made to his employer it became a protected disclosure. Did the claimant suffer a detriment as a result of that? It is clear that the claimant had already been suspended following the promulgation of the Bromley Report, albeit that our conclusion is that the underlying motive was his stance over the issue of consultation. His suspension and the issue of the press notice were capable of amounting to a detriment but those things had already happened before he wrote his letter. Those issues cannot have amounted to a detriment caused by any public interest disclosure. Thereafter the claimant continued to be under suspension until the Hawker Report was published. The events which followed that flowed, in our judgment, from the report itself and not from the disclosure made in his letter of 30 September. Our conclusion is, therefore, that although the claimant made a protected disclosure he did not suffer any detriment as a result of the matter.

82. We have also given consideration to respondenfs submissions that should this be found to have been unfair dismissal on ordinary principles, for whatever reason, that had the respondents followed a different procedure the outcome would probably still have been the same - the 'Polkey' issue.

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The respondents further submit that we should find that the claimant contributed to his own dismissal and that our findings should reflect the percentage to which his conduct is attributable.

83.lt is clear that whatever the reason for the dismissal, it is open to the Tribunal to consider whether or not the outcome might have been different, and if so to what extent, if the respondents had followed a different procedure. This would involve the Tribunal in conducting an exercise in seeking to predict what the outcome would have been on the balance of probabilities if matters had been conducted differently. In this case, the criticism that the applicant makes of the respondent's procedure, and which we support, was that no consideration was given to the issues that he raised in his rebuttal letter. It is clear that the claimant had made substantial progress in turning around the fortunes of the RCHT, but the Tribunal would have to reach the conclusion, in considering the 'Polkey' issue, that even if the respondents had adopted a different procedure the result would probably have been the same. This leads to the question as to what view the respondents would have formed if they had investigated all the issues that the claimant raised. Would they have found the claimant's points have been well made and, if so, would they have influenced the respondent's decision and to what extent? We do not consider that we are equipped to carry out the necessary in depth and far ranging enquiry that this would require. Furthermore, we are of the view that the circumstances clearly demonstrate that the respondents had determined to dismiss the claimant as a result of pressure from the SHA. Our conclusion is that a different procedure would not have resulted in any different outcome.

84. Did the claimant contribute to his dismissal by his own conduct? We have expressed some criticism of the claimant in failing to engage with the panel at the meeting on 15 April. Had he done so he might have served his interests better. The position emerges that the claimant had achieved some success. The Hawker Report was critical of him but he rejected that criticism as flawed and claimed that the report was unbalanced. Can we, as a Tribunal conclude on the basis of the evidence before us that the claimant was culpable or blameworthy, that his conduct caused or contributed to his dismissal and that it would be just and equitable to reduce his award by some proportion? We have no hesitation in rejecting this argument. The conduct on the part of the claimant, which caused his dismissal, was his action in advising the respondent that it needed to undertake consultation. Given the advice from Counsel this was a very proper action on his part. If matters had turned out differently, and the claimant had not given that advice he might have then been subject to substantial criticism for failing to do so. We see nothing in the claimant's conduct which could have caused or contributed to his dismissal.

85. The claim will now be listed for further hearings on remedy which has already been fixed for 15 July 2010.

fjlm^ 36

Case Nos.1702168/2008 1702079/2009

Employment Judge

Date: •^ J O M ^

JUDGMENT SENT TO THE PARTIES ON

.^'^Mcukr.Sto.io. FOR THE SECRETARY OF EMPLOYMENT TRIBUNALS

37