By Jo Seery, Professional Support Lawyer
Background
Dr MN was employed as a Consultant in Diabetes and General Paediatrics by NHS Foundation Trust L. In 2024, the Trust commenced a formal investigation into concerns relating to an alleged breach of confidentiality.
Initially, the Trust did not consider that the investigation should be carried out under the policy Maintaining High Professional Standards in the NHS (the “MHPS”), but subsequently agreed to apply it in order to treat Dr MN fairly. The Director of Corporate Affairs wrote to Dr MN and advised that the Medical Director role would assume the role of “Case Manager” for the investigation but that he would delegate responsibility for carrying out the function to her.
Dr MN brought a High Court claim for breach of contract, arguing that the Trust’s collective agreement – E27, “Handling concerns about conduct, performance & health of medical & dental staff” which is designed to be consistent with MHPS – formed part of his contract of employment. He contended that paragraph 1.6 of Appendix A of that policy required, in cases involving consultants, the Medical Director must personally act as Case Manager and could not delegate the role.
The High Court found in Dr MN’s favour, holding that the policy was incorporated into his contract and that the Trust had acted in breach of contract by delegating the Case Manager function to the Director of Corporate Affairs. It also awarded Dr MN his costs in full. The Trust appealed to the Court of Appeal against the decision and the award of costs.
Key Issues
Incorporation of collective agreements into employment contracts
The key issues for the Court of Appeal to determine were:
- Whether paragraph 1.6 of Appendix A of the Trusts collective agreement which provides that, “The Medical Director will act as Case Manager in cases involving Clinical Leaders i.e. Clinical Directors Service Leaders and consultants and may delegate this role to a senior manager to oversee the case on his or her behalf in other cases” was apt for incorporation into Dr MN’s contract of employment consultants; and if so
- What did that term mean.
The Trust argued that paragraph 1.6 was general advice or guidance and not apt for incorporation. In particular, it set out the administrative roles for corporate officers and did not prescribe any obligations between the Trust and Dr MN.
The Court applied established principles on incorporation of collective agreements. In particular, as per earlier case authority including the recent judgment in USDAW v Tesco Stores Ltd whether an express term of a collective agreement is apt for incorporation and so binding depends on a number of factors. These include.
- the importance of the provision to the working relationship,
- its relationship to the contractual agreement,
- the level of detail and certainty of the provision; and
- whether it would work if given contractual status.
Outcome
The Court of Appeal (Newey, Singh and Nugee LJJ) dismissed the appeal.
It held that:
- Paragraph 1.6 of Appendix A to E27 was apt for incorporation into the individual contract. The wording “will act” as the Case Manager. The language used made it clear that it did confer a right which was sufficiently certain and important to the employment relationship, and not merely aspirational or managerial guidance.
- The clear wording that the Medical Director “will act” as Case Manager in consultant cases conferred a right on the individual consultant employee and imposed an obligation imposed on the Trust as distinct from a discretion for the Trust to act differently “in other cases”.
- The term was important to a senior doctor such as a consultant, because of the potential serious impact on their career and reputation
- If the term had been set out in the individual contract it would have been regarded as a contractual requirement. An interpretation of paragraph 16 as “micro-management” of the employment relationship was rejected. The contractual term could work in practice since a great deal of the day to day work would still be done by the case investigator.
- Although a term may be implied that the Medical Director may delegate the task of a Case Manager to another person in exceptional circumstances (such as conflict of interest or illness), no such circumstances arose here.
The Trust’s appeal against the costs order was also dismissed. The Court confirmed that it could not interfere with the High Court’s exercise of discretion unless there was an error in principle amongst other factors not relevant in this case. Furthermore, given the judge’s broad discretion, it was just for the High Court to order that the successful party recover all of its costs even if not every pleaded issue succeeds.
Why This Matters
This decision provides important clarification on the incorporation of a locally agreed MHPS policy.
The Court confirmed that collectively agreed procedures governing disciplinary and investigative processes may be contractually binding where they are sufficiently precise, important and workable.
In addition to establishing these criteria, it will be important for Unions to consider the precise wording of the terms. Terms preceded by “will” are more likely to be given contractual effect and provide less flexibility for the employer to apply its discretion.
