Anonymised Summary of Court Opinion

Factual and Procedural Background

The Respondent is a consultant paediatrician employed by the Appellant (Company A) from 1 July 2018. The Respondent had previously worked with a nurse who was later criminally convicted; the Respondent gave evidence in that trial and was granted lifetime anonymity. The Appellant received a complaint in August 2023 alleging a breach of patient confidentiality by the Respondent, and notified the Respondent on 23 January 2024 that it intended to undertake a formal investigation. The Appellant appointed Attorney Y as "Case Manager", purportedly by delegation from Attorney Z (the Appellant's Chief Medical Officer/Medical Director). The Respondent contended that his written contract incorporated a Trust policy (E27) and that paragraph 1.6 of Appendix A to E27 required the Medical Director personally to act as Case Manager in cases involving consultants and therefore could not be delegated. Proceedings were issued in the High Court on 21 March 2025. The High Court (Judge Sheldon) decided in favour of the Respondent, holding that (i) E27 (or at least para 1.6) was apt for incorporation into the Respondent's contract and (ii) para 1.6 required the Medical Director personally to act as Case Manager in such cases except in narrow exceptional circumstances. The High Court granted declaratory relief and awarded the Respondent his costs in full. The Appellant obtained permission to appeal; the appeal was heard and dismissed.

Legal Issues Presented

1. Whether the Appellant's local policy E27 is incorporated into the Respondent's contract of employment.
2. If incorporated, whether paragraph 1.6 of Appendix A to E27 is apt to have contractual effect.
3. If contractual, whether paragraph 1.6, properly interpreted, requires that the Medical Director personally act as Case Manager in cases involving consultants (and therefore cannot be delegated to a senior manager), save in exceptional circumstances.
4. Whether the Appellant acted in breach of contract by appointing/delegating Attorney Y to act as Case Manager in the Respondent's case.
5. Whether, if the investigation report identifies conduct/capability concerns, the Appellant must apply specified sections of E27 before taking employment action.
6. Whether, if a breach is established, declaratory or injunctive relief should be granted and on what terms.

Arguments of the Parties

Appellant's Arguments (as advanced by Attorney Gorton)

• Clause 17.1 of the contract does not incorporate E27 in whole; at most specific provisions apt for incorporation could be incorporated, and para 1.6 is not apt.
• Para 1.6 is guidance/advice addressed to the institution, not a term conferring rights on individuals.
• The Case Manager role is largely administrative and mundane; it does not require the Medical Director's medical skills and, where appropriate, delegation to a senior manager is envisaged elsewhere in E27.
• Reading para 1.6 as mandatory places an unsustainable burden on Medical Directors and risks micro-management by the courts of managerial processes.
• Implication of an express or implied term to make para 1.6 effective would itself be improper and would amount to judicial rewriting of the contract.

Respondent's Arguments (as advanced by Attorney Sutton)

• Clause 17.1 provides the mechanism for incorporation of E27; E27 is a collectively negotiated agreement and contains provisions apt for incorporation.
• Para 1.6 does not sound merely in guidance — its language confers rights and imposes obligations and is suitable for contractual effect, particularly for senior doctors (consultants).
• It is appropriate for the Medical Director to be Case Manager for consultants because of the serious potential impact on career and reputation.
• The express permissive delegation in the same sentence for "other cases" indicates that delegation is not intended for cases involving Clinical Leaders/consultants.
• Exceptional circumstances (e.g. insuperable conflict of interest or illness) may justify departure from the mandatory position; otherwise the obligation stands.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied ordinary principles of contractual interpretation and the indicia for incorporation of collective provisions into individual contracts (as summarised in Hussain and subsequent authorities). The court approached the question in two stages: (1) whether para 1.6 of Appendix A to E27 is apt for incorporation into the Respondent's contract; and (2) if incorporated, what its natural meaning and effect are.

On aptness for incorporation the court concluded that para 1.6 bore the indicia identified in authorities (importance to the contractual relationship, sufficient certainty, suitable level of detail, contextual placement among otherwise contractual provisions, and workability). The court accepted the Respondent's submission that clause 17.1 of the contract provided the mechanism for incorporation and that E27 was a collectively negotiated policy designed to govern handling of concerns about medical staff.

On interpretation, the court gave effect to the natural and ordinary meaning of the language of para 1.6. The sentence contrasts the statement that "The Medical Director will act as the Case Manager in cases involving Clinical Leaders ... and consultants" with the immediately following permissive wording that the Medical Director "may delegate this role ... in other cases." The court held that "will act" in context means a mandatory obligation ("must act") for cases involving Clinical Leaders/consultants, as opposed to a discretion. The court rejected the Appellant's submission that para 1.6 is merely aspirational or institutional guidance and concluded the provision confers rights on individual staff and imposes obligations on the employer.

The court addressed workability concerns by reference to documentary and witness evidence filed for the Appellant, including Attorney Z's witness statement explaining practical reasons for delegation in some circumstances, and statistical evidence that Medical Directors acted as Case Manager in a substantial proportion of consultant cases. The court found the provision workable and not an instance of impermissible judicial micro-management; much day-to-day activity remains for the Case Investigator and critical decisions remain for the Case Manager.

The court also implied a narrowly framed term that the Medical Director may delegate in exceptional circumstances (e.g. insuperable conflict of interest or illness). That implication was treated as necessary for business efficacy without rewriting the contract and consistent with Marks & Spencer and Ali.

Applying its conclusions, the court held that the Appellant's purported delegation in this case (Attorney Z delegating to Attorney Y) breached the Respondent's contract because none of the narrow exceptional circumstances was present.

Holding and Implications

HOLDING: The appeal is dismissed. The court affirmed the High Court's conclusion that paragraph 1.6 of Appendix A to E27 is apt for incorporation into the Respondent's contract of employment and, on its true interpretation, requires the Medical Director personally to act as Case Manager in cases involving Clinical Leaders/consultants, subject only to narrow exceptional circumstances (such as insuperable conflict of interest or illness). The Appellant's delegation in the present case was in breach of the Respondent's contract. The High Court's declaratory relief and costs order in favour of the Respondent were upheld.

Implications: The direct effect is that the Appellant must ensure the Medical Director (Attorney Z) undertakes the role of Case Manager for the investigation in issue unless one of the narrow exceptional circumstances applies. The court rejected the Appellant's costs challenge and upheld the judge's discretion to award the Respondent his costs in full. The opinion does not purport to lay down broader novel principles beyond application of established authorities on incorporation, interpretation and costs; the decision is grounded in application of existing authorities and the facts of this case.

All names and identifying details in this summary have been anonymised in accordance with the instruction accompanying the source opinion. References to specific named individuals or entities in the source opinion have been rendered using neutral placeholders.