Dr Susan Gilby v Countess of Chester Hospital NHS Foundation Trust and 1 other — 2024

Dr Susan Gilby was chief executive of the Countess of Chester Hospital NHS Foundation Trust. The tribunal preferred her evidence and contemporaneous documents on the disputed events, and it drew adverse inferences from missing, deleted or undisclosed emails, WhatsApp messages and appraisal records. It found that her earlier appraisals recorded positive performance and that later internal work referred to as "Project Countess" formed part of the way the claimant's exit was handled.

Applying section 43B ERA 1996 and the authorities it cited, including Babula, Chesterton Global and Kilraine, the tribunal held that the claimant made qualifying disclosures on 8 April 2022 and 11 May 2022 to Ros Fallon about Ian Haythornthwaite's behaviour, and on 28 July 2022 to Richard Barker of NHS England. It also treated the later emails, statement, solicitor's letter and letter to the Lead Governor as protected disclosures repeating and expanding on the same concerns. The tribunal found that she reasonably believed the disclosures were in the public interest and tended to show breaches of legal obligation and risks to health and safety.

The tribunal found a series of detriments followed. It accepted that the 18 July 2022 meeting was confrontational and aggressive, that mediation was blocked, and that the 27 September 2022 board meeting included personal criticism of the claimant in relation to the Trust's finances. It also accepted that on 22 October 2022 Ros Fallon told the claimant it was time for her to go, with either a deal or a process to follow, which the claimant understood as a threat of disciplinary action.

After the claimant went off sick, the tribunal found the Trust excluded her from work on 2 December 2022 without a lawful basis or proper process, restricted her contact with staff and access to emails and documents, and extended the exclusion several times until her notice expired on 5 June 2023. It held that the suspension letter relied on vague performance and conduct concerns rather than established gross misconduct, that the GMC reference in the letter was not justified, and that the first respondent's document handling and disclosure failures warranted adverse inferences. It also found the later investigations into performance and bullying were delayed and controlled by those already involved in the exit process.

On constructive dismissal, the tribunal held that the cumulative treatment breached the implied term of trust and confidence, that the breach was fundamental, and that the claimant resigned in response on 5 December 2022. It therefore found dismissal under section 95(1), unfair dismissal under section 98, and automatic unfair dismissal under section 103A because the protected disclosures materially influenced the treatment and dismissal. Liability was upheld on the whistleblowing detriment claim under section 47B as well. The tribunal adjourned remedy to an in-person hearing on 6 and 7 May 2025, so no compensation award was made in this judgment.