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

Precedent	Rule or Principle Cited For	Application by the Court
USDAW v Tesco Stores Ltd [2024] UKSC 28; [2025] ICR 107	Collective agreements are not usually binding but terms apt for incorporation can be incorporated into individual contracts; two-stage process and ordinary contract interpretation apply.	The court applied the two-stage approach and ordinary principles of contractual interpretation to decide whether para 1.6 was apt for incorporation.
Chakrabarty v Ipswich Hospital NHS Trust [2014] EWHC 2735	Not all collectively agreed terms are apt for incorporation; the term must be "apt" for incorporation.	The court relied on the "apt for incorporation" concept and analytical approach described in Chakrabarty when assessing para 1.6.
Alexander v Standard Telephones & Cables Ltd (No 2) [1991] IRLR 286	Principles summarising how to ascertain contractual intention and when non-contractual documents may be incorporated.	The court applied the Alexander principles in determining whether and which parts of E27 were apt to be contractual terms.
Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670	Identifies indicia relevant to whether a collective provision is contractual (importance to relationship, level of detail, certainty, context, workability).	The court used Hussain's indicia as a non-exhaustive guide and expressly applied those factors to para 1.6.
Sparks v Department for Transport [2016] EWCA Civ 360; [2016] ICR 695	Support for using indicia and Keeley-style test for aptness of incorporation and contractual construction.	The court cited Sparks in support of treating certain collective provisions as apt for contractual incorporation when appropriate.
Keeley v Fosroc International Ltd, [2006] IRLR 961	If a provision would plainly be contractual if placed in an individual contract, that supports aptness for incorporation.	The court relied on Keeley's approach (Dyson LJ's formulation) in concluding para 1.6 would be contractual if in an individual contract and thus is apt for incorporation.
Kulkarni v Milton Keynes Hospital NHS Trust [2008] IRLR 949	Caution against courts becoming involved in micro-management of conduct hearings and internal procedures.	The court acknowledged the micro-management concern but concluded giving para 1.6 contractual effect did not amount to impermissible micro-management here.
Malone v British Airways [2010] EWCA Civ 1225	Parties are not taken to have intended terms which would be unworkable or make no business sense.	The court assessed workability (including witness evidence and statistics) and concluded para 1.6 was workable in practice.
Al-Mishlab v Milton Keynes Hospital NHS Foundation Trust [2015] EWHC 3096	Summarises principles: managerial discretion, implied duties of trust and confidence, avoidance of micro-management, public interest in internal processes running their course.	The court applied Al-Mishlab's guidance on managerial discretion and the need to avoid undue interference, while upholding contractual interpretation that para 1.6 is mandatory for consultants.
MacMillan [2014] EWCA 1031	Authority cited for managerial power to manage employees and fall-back to managerial discretion where procedures are silent.	The court noted managerial discretion exists but concluded that an express contractual provision (para 1.6) would constrain that discretion for consultants.
Chhabra v West London Mental Health Trust [2013] UKSC 80	Examples of courts declining to interfere with internal panels/processes where issues amounted to micro-management.	The court considered Chhabra in the context of avoiding micro-management and concluded enforcement of para 1.6 did not amount to inappropriate interference.
Dr A v HTX [2012] EWHC 857	Public interest that substantive decisions on capability should be taken by mandated expert panels.	The court observed the public interest referred to in Dr A but confined its decision to the contractual identity of the Case Manager rather than substituting expert decision-making forums.
Braganza [2015] UKSC 17	Principles on the scope and review of discretionary powers in contracts (employer discretion constrained by implied duties).	The court cited Braganza in discussing the employer's discretion and the implied duties that constrain how internal processes must be conducted.
Yapp [2014] EWCA Civ 1512	Further authority on employer discretion being reviewable within a range of reasonable options (akin to Wednesbury).	The court referred to Yapp when discussing limits on managerial discretion and the role of implied duties of fairness.
Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2016] AC 742	Principles limiting implication of terms by fact: necessity for business efficacy or obviousness; capability of clear expression; no contradiction of express terms.	The court applied the Marks & Spencer principles when considering implication (limited implication that delegation may be permitted in exceptional circumstances).
Ali v Petroleum Co of Trinidad and Tobago [2017] ICR 531	Warning that implication of terms must not become rewriting of the contract.	The court relied on Ali when emphasising constraint on implying terms and avoided rewriting para 1.6 beyond what was necessary for business efficacy (narrow implied exception for conflict/illness).
Arnold v Britton [2015] UKSC 36; [2015] AC 1619	General approach to contractual interpretation: objective, contextual, factors to consider (natural meaning, other provisions, purpose, background).	The court applied Arnold's approach to interpret the language of para 1.6 in its documentary and factual context.
Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101	Quotation used in Arnold for objective interpretation (background knowledge test).	The court followed the Arnold/Chartbrook approach to meaning in construing para 1.6.
Prenn [1971] 1 WLR 1381	Classic authorities on contractual interpretation referenced via Arnold.	Used as part of the general interpretative framework applied to para 1.6.
Reardon Smith Line Ltd v Yngvar Hansen-Tangen (trading as HE Hansen-Tangen) [1976] 1 WLR 989	Authority referenced in the general interpretation framework.	Cited as part of the established authorities forming the interpretative approach.
Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251	Authority referenced for contractual interpretation principles.	Cited within the general interpretative framework applied by the court.
Rainy Sky [2011] 1 WLR 2900	Authority on commercial common sense and interpretation.	Referred to as part of the interpretative principles applied to para 1.6.
Fleming v Chief Constable of Sussex [2004] EWCA Civ 643; [2005] 1 Costs LR 1	Principles on identifying the party who has "really won" litigation for costs purposes.	The court applied Fleming's approach in deciding that the Respondent was the successful party overall for costs purposes.
Kastor Navigation v AXA Global Risks [2004] EWCA Civ 277; [2004] 4 Costs LR 569	General rule that unsuccessful party pays costs of the successful party in the litigation as a whole.	The court relied on Kastor Navigation in concluding that costs should follow the overall successful party and upheld the High Court's costs order.
Terracorp v Mistry [2020] EWHC 2623; [2020] Costs LR 1435	Authority permitting full costs awards even where success is partial; principles on costs discretion.	The court cited Terracorp in upholding the judge's decision to award the Respondent his costs in full despite partial issues being unresolved or abandoned.
Sycamore Bidco v Breslin [2013] EWHC 583	Principle that there is no automatic rule requiring reduction of a successful party's costs if they lose on some issues.	Relied upon when assessing the costs discretion exercised by the High Court judge.
Budgen v Andrew Gardner Partnership [2002] EWCA Civ 1125	Observation that winners often fail on some issues; courts may nonetheless award full or substantial costs to the overall winner.	Referred to in support of the proposition that partial defeat on some points does not automatically reduce a costs award to the overall successful party.
Kidsons v Lloyds Underwriters [2007] EWHC 2699	Authority cited alongside Budgen on costs principles.	Used to support the costs reasoning that the court should identify who "really won" the litigation.
Burn v Alder Hey Children's NHS Foundation Trust [2021] EWCA Civ 1791; [2022] ICR 492	Referenced regarding developing principles in this area of law (internal processes, employment challenges).	The court noted Burn as part of the evolving authorities and declined to decide hypothetical cross-appeal issues in light of ongoing development in the law.
Makhdum [2012] EWHC 4015	Illustration of public interest in allowing internal processes to run their course; courts slow to interfere absent serious irregularities.	Cited in support of the general approach to interference with internal procedures, while distinguishing that contractual interpretation could still require relief.
Hendy v MOJ [2014] EWHC 2539	Authority on respecting agreed processes where parties have agreed a procedure.	Referenced in discussion of public interest in allowing internal procedures to operate.
Sarker [2015] EWHC 165	Similar authority on respecting internal dispute resolution processes.	Referenced as part of the suite of authorities cautioning against undue interference in internal procedures.

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.

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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.