Medway NHS Foundation Trust director, whom Employment Tribunal determined gave “simply factually untrue” evidence to an investigator, became an NHS England manager

Dr Minh Alexander retired consultant psychiatrist 21 September 2023

This is a short post to document another example of NHS managerial recycling, in the context of debate about regulating NHS managers after the Letby killings.

A former employee of Medway NHS Foundation Trust Rosemary Bonney,service manager in acute medicine, successfully sued the trust for unfair constructive dismissal.

The matter was covered by the local press:

Unwell NHS worker wrongfully ousted by Medway Maritime Hospital in Gillingham, tribunal finds

This is the relevant Employment Tribunal judgment:

Mrs R Bonney v Medway NHS Foundation Trust case number 2301096/2021 & 2302098/2021

The relevant events took place at a time of turmoil in the trust:

“7. The First Respondent is an NHS Trust (hereafter ‘the Respondent’). It operates Medway Maritime Hospital in Gillingham. At the relevant times it was struggling:

7.1. the Respondent was in special measures between 2013 and 2017;

7.2. even after leaving special measures the respondent was in ‘SOF4’, Single Oversight Framework, grade 4. That is the highest form of external scrutiny”

Mrs Bonney’s appointment to the trust as a service manager in acute medicine was chaotic, with muddle by the trust as to which role she had actually been appointed.

“18. The confusing and chaotic approach to the Claimant’s role reflected wider chaos within the Respondent at that time:

18.1. The Respondent was operating in an at least partly dysfunctional state and was in various respects in some disarray;

18.2. There was no General Manager in post for Acute Medicine. The General Manager would normally be the line manager of the Service Manager;

18.3. Ms Spence herself was under great pressure in her role and was picking up the line management of the Service Manager in addition a very wide range of other duties.”

In short, the ET determined that Mrs Bonney, a Black worker, began working for Medway in April 2019 as a service manager and was later offered a new role in Transformation by Medway’s Chief Operating Officer, Harvey McEnroe, which she accepted.

However, the offer had been made without Human Resources input, and was withdrawn after HR discovered the offer. Mrs Bonney was eventually advised that the offered role did not exist:

“55. On 27 September 2019, the Claimant spoke to Ms Nyawade who told her that the role in Transformation did not exist and that there were no recruitment plans for the Transformation Team.”

Mrs Bonney was shortly after signed off sick with stress and remained on sick leave until her resignation. She also raised a grievance about these events. The grievance was investigated by the Head of Corporate and Legal, Paul Mullane.

During the course of the grievance investigation, Paul Mullane withdrew and the investigation was completed by John Sheath, trust solicitor.

During the grievance investigation, Harvey McEnroe denied offering Mrs Bonney the Transformation job. The ET rejected McEnroe’s evidence and cited various contemporaneous correspondence which supported Ms Bonney’s contention that this post had been offered.

For example, emails that had been exchanged with various managers and the fact that Jack Tabner Executive Director of Transformation and Digital had given Mrs Bonney a reading list to prepare for her new role in his department. Tabner had also sent Mrs Bonney an email welcoming her to his team and discussing practical details such as computer access:

Based on the job offer, Mrs Bonney said goodbye to her existing team, in correspondence.

Her post in acute medicine was filled by someone else.

Jack Tabner also denied during the grievance investigation that Mrs Bonney had been offered the Transformation post, despite the mass of evidence to the contrary.

The ET criticised the fact that Mc Enroe and Tabner gave “simply factually untrue” evidence during the grievance investigation:

“177. In their evidence to the grievance investigator, Mr Tabner and Mr McEnroe gave evidence which was of great importance but that was simply factually untrue:

177.1. Mr Tabner said that “No formal offer was made and this was an early conversation. I then had no further contact with Rosemary.” Mr Tabner also said: “What arrangements did you make to receive Rosemary in the team?” he answered “none at this early stage.” This evidence was simply untrue and there is documented correspondence in which makes plain that it was agreed the Claimant would be working in the Delivery Unit and steps were taken to on board her. But for HR intervention she would indeed have commenced working in the Delivery Unit very shortly.

177.2. Mr McEnroe said: “I did not offer a formal role change but did offer to discuss RB as a possible candidate for the Delivery Unit….Possible future roles were discussed at this meeting, in response to RB asking about possible alternative roles. Transformation roles were discussed at this time.”

This account is not right. Mr McEnroe offered the Claimant a role in the Delivery Unit in the meeting of 12 September 2019. He then confirmed this when he spoke with Mr Cairney as Mr Cairney’s contemporaneous email indicates.

178. There was no reasonable and proper cause for giving the above version of events. It is not what happened and the events in question were at that point in time relatively temporally proximate – they dated back around 6 months. There was also a paper trail that could have assisted Mr Tabner/Mr McEnroe to refresh their memories had they chosen to look into the emails they themselves had sent and/or received in respect of the matters the grievance investigator was asking them about.”

Kevin Cairney, formerly Medway’s Director of Operations for Unplanned and Integrated, gave oral evidence to the ET that McEnroe and Tabner worked in the “grey”:

“56. Mr Cairney’s oral evidence was that Mr McEnroe and Mr Tabner worked “off policy” with “grey” transactions to get things done. We find that essentially something like that happened here. An offer of a role was made and it was accepted. This done in the informal way described above. However, when it came to HR’s attention the plug was pulled.”

Mrs Bonney resigned from Medway in December 2020 shortly after receiving the outcome of her grievance appeal.

The ET concluded that the trust’s actions in withdrawing the Transformation post and the handling of Mrs Bonney’s grievance amounted to repudiatory breaches and that she was unfairly constructively dismissed.

The ET also criticised adverse line management feedback to Mrs Bonney about her performance and the repetition of these sentiments in the grievance report:

“81. The report’s conclusions, fairly read, find or assume that there was indeed significant under-performance on the Claimant’s part and/or that she had a lack of suitability for her role. There was no proper basis for that finding/assumption based on the evidence gathered in the investigation.”

The grievance appeal outcome, from Gurjit Mahil deputy Chief Executive framed the offer and withdrawal of the Transformation post as a matter of ineffective communication by the trust. It was ambiguous as to Mrs Bonney’s performance. The ET considered that it was a better quality piece of work than the grievance report, but accepted that the grievance appeal outcome was the “final straw”.

According to KentOnLine, Medway NHS Foundation Trust accepted the ET’s findings.

Jack Tabner’s LinkedIn entry  indicates that he is no longer working in the NHS.

Harvey McEnroe’s linkedIn entry indicates that he moved to more senior management posts at NHS England in July 2021, rising to become Regional Head of Performance and Delivery and ICC Director – NHS South East England.

McEnroe then moved to University Hospitals Sussex NHS Foundation Trust as Hospital Director and Vaccines Director, before most recently being appointed to the plum job of Chief Operating Officer at Papworth.

The Sussex connection is interesting as Medway’s CEO Jayne Black was formerly the Chief Operating Officer at Sussex, spanning some of the years relevant to current police investigation of deaths at Sussex.

Sussex’s former medical director now CEO George Findlay also spent a year at Medway as its CEO, preceding Black’s appointment as CEO.

This is Andy Heeps, University Hospitals Sussex NHS Foundation Trust Deputy Chief Executive and Chief Operating Officer congratulating McEnroe on his appointment to Papworth earlier this year:

According to the above LinkedIn announcement by Papworth, McEnroe “began his NHS career as a ward clerk”.

RELATED ITEMS

NHS England’s new Fit and Proper Person arrangements require truthfulness by NHS directors:

Under an updated NHS Fit and Proper Person framework published by NHS England on 2 August 2023, NHS directors are now required to “self attest” to their own fitness annually. This requires truthfulness for the system to work.

This is a copy of the “self attestation” form.

The declaration that NHS directors must make annually is as follows:

“I declare that I am a fit and proper person to carry out my role. I:
• am of good character
• have the qualifications, competence, skills and experience which are necessary for me to carry out my duties
• where applicable, have not been erased, removed or struck-off a register of professionals maintained by a regulator of healthcare or social work professionals
• am capable by reason of health of properly performing tasks which are intrinsic to the position
• am not prohibited from holding office (eg directors disqualification order)
• within the last five years:
‒ I have not been convicted of a criminal offence and sentenced to imprisonment of three months or more
‒ been un-discharged bankrupt nor have been subject to bankruptcy restrictions, or have made arrangement/compositions with creditors and has not discharged
‒ nor is on any ‘barred’ list.
• have not been responsible for, contributed to or facilitated any serious misconduct or mismanagement (whether unlawful or not) in the course of carrying on a regulated activity or providing a service elsewhere which, if provided in England, would be a regulated activity.“

I leave readers to consider the effectiveness of this arrangement.

In another employment dispute, Medway lost an ET case by default because the trust simply failed to respond to a claim:

Contempt and incompetence by Medway NHS Foundation Trust

I asked Jayne Black Medway’s CEO why the trust did not respond to the claim. She has provided no explanation so far. Her office only responded to say that “To confirm, this decision has been revoked and the Trust has submitted a defend [sic] to the claim.”

Robert Francis appeared on BBC Newsnight on 11 September 2023 and supported NHS England’s claims that full regulation is not needed for NHS managers:

Letby murders: Robert Francis complements NHS England’s messaging by telling BBC Newsnight that regulation lite should be considered for NHS managers

Francis suggested on Newsnight that NHS employers are unaware of errant managers’ histories. By doing so, he drew a veil over what is an organised system of mutual protection and recycling, which has NHS regulators at its heart. The system even has a nickname, “The Donkey Sanctuary”.

The case of Paula Vasco-Knight exemplifies the collusion running throughout the system:

Postscripts on Paula. NHS England’s apologia & regulatory reticence

Historically, Medway NHS Foundation was one of fourteen “Keogh” trusts found to have high mortality:

2013 Report out today will highlight major failings across 14 NHS hospital trusts

Letby murders: McLellan’s arse, NHS Stalinism and reported NHS management recycling at Devon ICB

Letter to Bill Kirkup and James Titcombe. Request for evidence of claimed “increased protection under the Freedom to Speak Up policy” and exposition of some contrary evidence

Lucy Letby murders: Letter to Wes Streeting Shadow Secretary for Health. Club culture masquerades as NHS regulation

Lucy Letby murders: Former Countess of Chester Non Executive Director James Wilkie

Lucy Letby murders: “Ready and willing” Follow up on Bill Kirkup’s comments to the BBC about his experience of witness cooperation with non statutory inquiries

Lucy Letby murders: Robert Francis’ and Bill Kirkup’s messaging supports government’s choice of a non-statutory inquiry

Lucy Letby murders: Learning from the 1994 Clothier inquiry into the Beverly Allitt killings at Grantham and Kesteven General Hospital