Catherine McLoughlin
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Mr Devonshire the Trust's Barrister stated during my Employment Tribunal Case that even if I won my case it would be impossible for me to return to my post as Finance Director at St George's Healthcare NHS Trust, because following what had been said during the court case it would be impossible for Miss McLoughlin, Mr Hamilton and I to ever be able to work together again. Just three weeks after the conclusion of the case the Trust put out a statement that Miss McLoughlin would not be seeking reappointment as Chairman of the Trust and would retire on the 31st October 2003. Just eight days later it was further announced by the Trust that Ian Hamilton would be taking a period of extended sick leave and that Peter Homa the former Chief Executive of the Commission For Health Improvement (CHI) would be appointed as Acting Chief Executive and then at the Trust Public Board Meeting held on the 21st October 2003 it was stated, "Ian Hamilton has informed the Trust that he will not be able to return to his post at the Trust's Chief Executive due to continuing ill health". Therefore before I received my Employment Tribunal result my two main accusers who had made false accusations against me had already left the Trust, thereby removing according to Mr Devonshire one of the major obstacles that apparently prevented me from returning to my employment as Director of Finance.
Because of my previous dealings with Miss McLoughlin, when I was first told in July 2002 that disciplinary proceedings would be taken against me if I refused to resign my post as Finance Director I knew that she would be unfairly biased against me (as later confirmed at the Employment Tribunal when details of an interview she gave on 29th July 2002 to management consultants KPMG were ordered to be disclosed by the Tribunal Chairman Mr Warren), I requested that Miss McLoughlin step down from the Chairmanship of my Internal NHS Disciplinary hearing and that an independent person be appointed to chair the hearing. Not surprisingly Miss McLoughlin stated that she was the only possible person who could chair the hearing. In addition she allowed Ian Hamilton the Chief Executive of the Trust to investigate the complaints that he claimed had been made against me in complete contradiction of the NHS Code of Conduct For Managers. Even if there had been no code of conduct, Miss McLoughlin should still have appointed an independent person to investigate the complaints the Chief Executive was making against me and allowed the hearing to be chaired by an independent person, specifically because my defence against the false allegations being made against me relied on the fact that I had made a Public Interest Disclosure to both Miss McLoughlin and Mr Hamilton, when I had previously informed them about the fraudulent reporting of cancelled operations in October 2001 and subsequently when they were informed of the protected disclosure that I had made to the external auditor of the fact that the Trust was in danger of breaching its Statutory Breakeven Duty (Section 10 (1) of the NHS and Community Care Act 1990), Health Service Circular 1999/146 providing comprehensive guidance on the duty.
By her refusal to allow an independent person to investigate the allegations being made against me and by her refusal to allow an independent person to chair the internal disciplinary hearing, Miss McLoughlin prevented me from having the fair and impartial hearing which the code of conduct states should have been my entitlement. There is a further point, which illustrates that Miss McLoughlin conducted an unfair hearing in considering the allegations brought against me. Firstly the Trusts Disciplinary Procedure states at Section 10.1 “That summary dismissal will only be used in exceptional circumstances for extremely serious cases treated as gross misconduct”. I have never at any stage been accused by the Trust of gross misconduct. In Ian Hamilton’s Management Statement of Case he states, “The issues relate primarily to: (i) his management style and ability to represent and advise the Trust in a positive and supportive manner and (ii) his ability to form the necessary quality of relationships with external advisers, stakeholders and other external agencies to ensure the Trust’s interests are best preserved and advanced”. Therefore as a minimum before I was dismissed there should have been under the Trust’s Disciplinary Procedure Section 5.3.5, a final formal warning issued to me. No such warning was ever issued by the Trust.
The decision to dismiss me as Finance Director of St George's Hospital was according to her own evidence solely the responsibility of Catherine McLoughlin Chairman of the Trust, although that evidence did not sit comfortably with the letter of dismissal that I received which often used the terms we and us when remarking on the conclusions reached.
I would contend that the Chairman's evidence given to the Employment Tribunal as to her reasons for dismissal was vague, inconsistent and contrary even to the terms of her dismissal letter. I would submit that the Chairman, in her reasons, relied heavily on the unsupported case presented to her by the Chief Executive, Ian Hamilton, and ignored the wealth of written evidence which I had provided to dispute the Chief Executive's case. Further, the Chairman was content for evidence to be heard in the disciplinary process which had never before formed part of the case against me, but which was accepted by the Chairman in support of her decision (in particular, the evidence of Melvyn Esterman) quite against the ACAS guidelines for the conduct of internal disciplinary hearings. It can properly and appropriately be inferred from this conduct that I was not dismissed for genuinely held beliefs as to my inability to perform my role adequately as Finance Director, and the Chairman's assertion that she did genuinely hold such a belief does not stand up to the barest of scrutiny.
Indeed, I was not expecting a fair hearing from the Chairman, hence the reasons for my insisting that an independent person chair the hearing. My belief that the Chairman would be biased against me was given considerable support when evidence was disclosed late in the Employment Hearing by KPMG, a firm of management consultants who had been conducting a review of the financial management of St George's. In the notes of a meeting with the Chairman that KPMG took she is reported to have said on 29th July 2002 that she wanted an exit strategy in place for Ian Perkin by the end of July 2002, and that they were exploring the possibility of [the Applicant] being moved elsewhere. This interview alone seriously calls into question the credibility of the Chairman who, on oath before the Tribunal, gave evidence to the effect that she had not discussed the case against me prior to her chairing the disciplinary hearing; that she had formed no conclusions as to the outcome regarding me, and that she had not engaged in investigations with other entities (and in particular the NHS London Regional Office) regarding the possibility of me moving (temporarily or otherwise). Indeed, when the whole KPMG interview with the Chairman is read , bearing in mind this is an interview given by the Chairman on 29th July 2002 - the same day that I was asked quite unexpectedly to resign from my job or face the possibility of disciplinary proceedings - it is very clear that the Chairman had formed her own conclusions (with no concrete examples) regarding my suitability as finance director which conclusions appear to form, remarkably, the basis of the management case against me. This level and extent of bias and disingenuous conduct on the part of the Chairman supports my consistent response that her claims that my performance, capability and conduct fell below the standards expected and required were entirely untrue, and that, particularly in the light of the Chairman's interview with KPMG, the disciplinary hearing was a sham, designed to put a veil of acceptability on the decision which she had already taken to oust me from the Trust.
Miss McLoughlin's dismissal letter to me laid out certain conclusions and I have listed these below with my comments on each.
1) The Applicant failed to engage the Service Centre Chairs and other clinicians resulting in a loss of confidence in Ian Perkin as a Director of Finance. This sense of disengagement extended to the General Managers who did not feel supported by the Finance Department. In short the Applicant failed to secure the level of integration required.
Neither the Chairman, nor any other witness on behalf of the Trust's management case, could give an indication of what was envisaged by the level of integration required. The Chairman admitted in evidence that she made no finding of fact as to any piece of information provided by me or my directorate to Managers or Clinicians which was inadequate, or as to any example of a refusal on my part or that of my directorate to assist in response to a request.
The Chairman agreed that she had made no finding of fact regarding the allegation made by David Knowles that I had failed to take responsibility for something that I should have done and didn't.
The Chairman agreed that she had found no specific example from Suzie Bailey in support of her allegation that I or my directorate had failed to engage in order to help her manage her service centre.
(2) Ian Perkin limited his role to giving accurate financial information and then left it to others to find solutions to the identified problems.
Neither the Chairman, nor any other witness for the Trust's management case could provide a single example of such an instance. It is true that Diane Mark, for the first time in evidence before the Employment Tribunal, and having heard the Chairman and Chief Executive cross examined on this document on the preceding days, suggested that an e-mail I sent to Pat Hamilton the Trust's Chairman of Children & Women's Services was an example of my refusal to assist. It is simply submitted that that document, which is a response to a request for help from Patricia Hamilton, Service Centre Chair, Children and Women's services, far from showing a refusal to assist, shows that I outlined where misunderstandings may have existed and invited any further queries to be raised with me.
(3) Ian Perkin had a disabling and negative approach which led us [sic] to conclude that his relationship with the executive team has broken down.
Apart from the general complaint from Marie Grant that the I and my directorate had failed to assist with regard to costings, the Chairman could point to no specific example of a disabling or negative approach on my part. The general complaint regarding costings was handled specifically with the e-mails that I submitted to the employment tribunal and the various reports that I had made to the Board.
(4) Ian Perkin's allegations of bullying and harassment by Ian Hamilton were unfounded, and in fact Ian Hamilton sought to work with the Applicant to improve his performance after problems had been identified to him.
By the Chairman's own evidence, my grievance regarding the earlier conduct of Ian Hamilton was not separately scrutinised, either apart from the disciplinary proceedings, or within. No investigation of my grievance was conducted. Apart from some hand-written notes which Ian Hamilton produced in evidence there was no evidence before the Chairman upon which the conclusion that Ian Hamilton identified the issues and sought to work with me could be found. The decision to believe Ian Hamilton, based upon scant evidence (and indeed, in the face of a suggestion in the management case that Ian Hamilton chose not to raise issues with me until the outcome of the KPMG report) betrays either a desire to consider any evidence, however scant, to be damning against me, or that the disciplinary process was a sham, or both.
(5) The criticisms which are well founded related to Ian Perkin's ability to interact effectively with Executive and Board colleagues.
Under examination, the Chair could point to no criticisms other than the general criticism about costing, which I rebutted with evidence and which appeared not to be founded upon any specific example.
(6) Ian Perkin failed to establish the quality of relationships with external advisers, stakeholders and other external agencies, necessary to preserve and advance the Trust's interests, and on this the evidence of Melvyn Esterman and Simon Sharp was accepted. Ian Perkin's approach distanced the Trust from some of the key external stake-holders.
The evidence, and the Trust's approach to the evidence, of Simon Sharp is dealt with in detail below, but it suffices to say at this stage that the Chairman could provide no answer to the question: what part of Simon Sharp's evidence suggested that there was anything wrong with his relationship with me?
In answer to the question, what key external stakeholders did you find that the trust had been distanced from as a result of the actions of the Applicant, the Chairman could not provide a single example. It is true that Diane Mark suggested that Melvyn Esterman had himself given two examples of commissioning organisations with which he said I had a bad relationship, yet for both these commissioners my directorate were providing services, and I provided evidence of a significant working relationship with one. The suggestion that the Chairman made, that providing audit services was not the same as working with external stakeholders was wholly unsubstantiated, particularly in the light of the fact that the Chairman could point to no other trust that provided services other than audit services to external Primary Care Trusts, and the fact that no other trust was providing audit services to as many PCT's as St George's.
The Chairman admitted that apart from Melvyn Esterman's evidence, there was no specific finding of fact as to any external stakeholder who had become distanced as a result of the actions of Ian Perkin. Further, the Chairman could provide no satisfactory response to why she chose to believe the unsubstantiated examples of other failings provided by Melvyn Esterman (e.g. late returns, unbalanced books) above my evidence which stated quite clearly that there had been no late returns or unbalanced accounts. The Chairman made no findings of fact as to what I had done wrong, with the result that the Trust became distanced from external stakeholders.
(7) We were quite satisfied that it was not the fact that [the Applicant] raised concerns about financial or auditory matters that caused a problem, rather it was the way in which Ian Perkin chose to do so, and his failure to participate constructively in resolving the identified problems which caused concern.
This matter is dealt with in more detail below, but it is remarkable that the Chairman attempted to distance these words from the disclosures made by me to Simon Sharp (financial) and about cancelled operations (auditory), suggesting that the words financial and auditory did not refer to these incidents. She could provide no sensible explanation for what they did refer to, and it is to be noted that her evidence on this point stands in stark contrast to the evidence of Diane Mark, who admitted that the words financial and auditory did indeed refer to the Applicant's disclosures to Simon Sharp. But neither the Chairman nor Diane Mark could point to specific findings of fact as to the way in which I chose to raise concerns about auditory or financial matters could have been considered to have been done in an unsatisfactory manner. Diane Mark, hopelessly ventured to suggest that on the cancelled operations issue I should have approached John Parkes directly before approaching the Chief Executive, and yet it was the Trust's case that, with the exception perhaps of Melvyn Esterman, all the witnesses called by the Chief Executive before the disciplinary hearing had, apparently, approached the Chief Executive prior to approaching me and had not been criticised for so doing. No findings of fact have ever been made as to the manner in which I disclosed information to Simon Sharp as distinct from the fact of its disclosure.
(8) Taping conversations with Ian Hamilton and Simon Sharp [note: not the refusal to admit to such taping] was highly questionable (with regard to Ian Hamilton) and wholly unacceptable (with regard to Simon Sharp).
This matter is dealt with in detail below, but it is observed that no account appears to have been taken of the possible reasons why I might have been forgiven for such taping (because my continued employment was being unfairly threatend) , or indeed on legal advice why I refused to provide an answer to the question, were the conversations taped? At no stage can it be said that the Trust's witnesses heard me deny that I had taped (Diane Mark retracted her statement to this effect), nor do any of the Trust's witnesses suggest that they were misled into thinking that I had recorded the conversation by another means. It appears that the Chairman jumped on this incident as it provided a windfall whereby I could be criticised further. On this, and the personal attacks issue, it is observed that it was the opinion of the Chief Executive, that I could not continue in my role as Finance Director prior to any suggestion of taped evidence or personal attacks (other than those attacking Ian Hamilton's credibility, which the Chairman suggested were not instances contemplated as personal attacks in my dismissal letter).
(9) Engaging in personal attacks, extending on occasions to abuse, against Ian Hamilton and other witnesses with whose evidence you disagreed has resulted in the situation where we do not see you could ever work together again. Even if, therefore, we had decided that the allegations had not been made out, your conduct would still have led us to a conclusion that you cannot return to a senior position within the Trust.
The Chairman specifically stated that this allegation did not relate to the attacks concerning Ian Hamilton's ambiguous use of the CIPFA qualification and financial probity of the Chief Executive. When asked what other personal attacks she could point to, she could provide no examples. It is respectfully submitted that the denial that this allegation related to the financial probity and CIPFA allegation against Ian Hamilton brought by me, is an attempt by the Chairman to head-off one of my complaints that I was dismissed because I raised issues which I reasonably held to be instances of the Chief Executive to have acted breach of a number of legal obligations.
The other interesting piece of information that my letter of dismissal from Miss Mcloughlin contained, was that although I was entitled to expect, according to the internal disciplinary rules of the Trust and indeed the ACAS guidance on such hearings, the right of an internal appeal within the NHS against my dismissal, Miss McLoughlin made it clear in her letter that I was not to be granted one. The wording in my dismissal letter was, "In view of the conclusion we have reached as to the complete impracticability of you resuming your role and forming effective relationships with the Chief Executive and Executive team we do not consider that there can be any appeal against this decision." Miss McLoughlin had set herself up to be my judge, jury and executioner and all without any right of appeal at all.
As a post script I will leave you to decide whether or not Miss McLoughlin should have chaired my internal NHS disciplinary hearing and whether now she has stepped down from her position as Chairman at St George's Healthcare NHS Trust to concentrate on her other health interests, she is a fit and proper person to be involved with any public sector health body? I know what my view is.
I am simply amazed that Catherine McLoughlin has been appointed as Chairman of Age Concern. In judgement issued by the Court of Appeal in the case of Perkin v St George's Healthcare NHS Trust issued on the 12th October 2005.
Lord Justice's Wall, Tuckey and Mance had this to say about Catherine McLoughlin
The point which I have found most difficult in this part of the case is that which relates to the conduct of Ms McLoughlin. There is no dispute that this plainly rendered the dismissal procedurally unfair. The question is whether it goes further, and whether the Tribunal was right to find; (1) that had Mr. Perkin's disciplinary proceedings been conducted before a properly constituted and unbiased tribunal there was a 100% chance that he would have been fairly dismissed; and (2) that Mr. Perkin "by his conduct Mr. Perkin contributed to his dismissal to the extent of 100%" .
"I have to say that I find it quite extraordinary that a person in Ms McLoughlin's position could think it right to chair an internal disciplinary procedure when she herself, only days before, had made it clear beyond peradventure that she wanted Mr. Perkin dismissed. The overwhelming and irresistible inference is that she not only wanted him out, but was of the view that this was the speediest and most effective way of achieving her objective, since there was plainly no prospect, with her in the chair, that the disciplinary procedure would result in anything other than confirmation of Mr. Perkin's dismissal".In addition and perhaps more importantly their Lord Justices also had this to say, "Mr. Perkin was plainly operating in a difficult world, where the standards set by Ms McLoughlin, to take the obvious example, left a great deal to be desired and where his desire to protect his back was understandable".
I can't personally think of anyone less suited to be Chairman of Age Concern than Catherine McLoughlin, a person who lies when giving evidence under oath in legal proceedings. Surely the elderly deserve better than this.
