Lucy Letby NHS trust deleted WhatsApp messages and emails, tribunal finds
The NHS trust at the centre of the Lucy Letby case deleted WhatsApp messages sent to a senior member of staff, a tribunal has found.
The Countess of Chester Hospital NHS Foundation and its chairman has been criticised by a judge for “unreasonable behaviour” after the “apparent destruction of documents” required for a legal case.
The trust and its chairman are being sued for unfair dismissal by Dr Susan Gilby, its former chief executive, who has criticised the Countess of Chester for its mishandling of the Letby scandal.
Dr Gilby claims that she was forced out of the Countess of Chester after she raised concerns about Ian Haythornthwaite, the chairman of the board, that he “repeatedly bullied, harassed and undermined” her.
When Dr Gilby was searching her work emails and mobile phone to prepare for the ongoing inquiry into the Countess of Chester’s handling of the Letby scandal, she found that all of her work WhatsApp messages and several emails were missing.
While the employment tribunal does not relate directly to the Lucy Letby trial, it raises questions about the trust’s approach to record-keeping and evidence.
Lucy Letby was convicted of the murders of seven infants and the attempted murders of seven others and is serving 15 whole-life terms in prison.
Dr Gilby has firmly backed a group of consultants in the neonatal unit who raised concerns about Letby and has accused the trust of refusing to think the “unthinkable” about there being a murderer working at the hospital.
Mr Haythornthwaite did not join the Countess of Chester until after Letby was charged.
But in legal documents seen by The Telegraph, Dr Gilby warned that his conduct had a “chilling effect” on people who wanted to speak out about problematic behaviour.
Both the trust and Mr Haythornthwaite deny the accusations and claim that Dr Gilby was suspended owing to “genuine and substantial” concerns with her performance. The case will be heard at the end of 2024.
Dr Gilby’s preparation for the tribunal has been fraught with setbacks after it became clear that Mr Haythornthwaite and the trust had not handed over all the documents they should have done during discovery – the legal process where each side shares evidence.
Dr Gilby’s entire WhatsApp account from her work mobile phone has been wiped.
Judge David Franey also found that there had been the “selective deletions of emails from the claimant’s work email account”.
Dr Gilby was suspended by the trust in December 2022 and subsequently resigned. She was only allowed full access to her work emails in order to prepare for the Thirlwall Inquiry, which is under way and examining the Countess of Chester’s handling of the Letby scandal. Dr Gilby is due to appear at the inquiry as a witness.
Once she was allowed into her emails, she found that certain ones she knew she had sent had gone missing.
One was a report prepared by an external HR consultant based on exit interviews with key hospital staff and non-executive directors. The other was an invitation from an academic to participate in research relating to Covid.
Both items were missing from Dr Gilby’s inbox. There were no emails in her “deleted items” folder. However, when she raised concerns, the trust was able to locate them in a “Retrievable Items Folder” which it had not previously disclosed.
Other emails sent before September 2022 had been “irretrievably deleted” from the folder, meaning they can no longer be disclosed to the Thirlwall Inquiry.
The inquiry is investigating how the deaths and collapses at the Countess of Chester were allowed to continue for so long.
Consultants had complained to managers about the spike in mortality in 2015 and had warned that Letby was present at all the incidents.
Dr Gilby has previously claimed that, before she arrived at the Countess of Chester, its managers were “fixated” on the idea that the spate of baby deaths was down to inadequate care.
She said that managers had agreed in 2015 to have the first three baby deaths examined by an external organisation but then failed to do so.
Judge Franey found “as a fact that there had been the deletion of emails from the claimant’s work email account without her [Dr Gilby’s] knowledge”, although he said it was not clear who had done this.
He said: “The deletion on a selective basis of items from the claimant’s work email account is troubling, and the wholesale deletion of the WhatsApp app and its content from her work mobile phone is unexplained….I am satisfied that in relation to these matters, there has been unreasonable conduct of the proceedings by the respondents.”
Mr Haythornthwaite was also criticised for failing to share WhatsApp messages he exchanged with Nicola Price, the former head of HR at the hospital.
He claimed that he had only used the messaging app to talk to Dr Gilby.
However, documents disclosed by other parties showed that he had also discussed her with a colleague.
The judge said that “it does seem likely that he must have used WhatsApp more extensively than just with the claimant, and the failure to provide further disclosure or at least a detailed explanation of why there is nothing more to disclose, is unreasonable conduct on his behalf”.
A spokesman for the Countess of Chester Hospital NHS Foundation Trust said: “The case is going to a full employment tribunal hearing later this year. It is not appropriate for the trust to say more about this issue while the proceedings are ongoing.”