In this case, the Court of Appeal upheld the High Court's decision that the provisions of an NHS Foundation Trust's local policy implementing the Maintaining High Professional Standards (MHPS) framework were incorporated into a consultant doctor's employment contract and that the medical director was required to act as case manager. Accordingly, the Court of Appeal held that the Trust had acted in breach of the consultant's contract by appointing its director of corporate affairs as case manager.
Facts
NHS Foundation Trust L (the Trust) employs Dr MN as a consultant in diabetes and general paediatrics. Dr MN was the subject of an ongoing investigation by the Trust, relating to his professional conduct.
In January 2024, when it commenced the investigation, the Trust stated that it would not be applying the local MHPS policy because the investigation concerned matters of trust and confidence, rather than conduct or performance. The Trust appointed Ms Y, its director of corporate affairs, as the case manager.
Dr MN challenged this, asserting that the matters under investigation meant the MHPS policy should apply. Following correspondence between the parties' solicitors, the Trust agreed to apply its MHPS policy. However, Ms Y continued to act as case manager.
Dr MN then brought a claim in the High Court, seeking a declaration that:
- The Trust's local MHPS policy was incorporated into his contract of employment
- The term of that policy specifying that the medical director would act as the case manager in cases involving consultants was incorporated into his contract
- The Trust had breached his contract by appointing Ms Y as the case manager
- The medical director would have to act as the case manager in Dr MN's case going forward unless there were exceptional circumstances (such as conflict of interest or long-term ill-health)
The High Court agreed with Dr MN that the Trust's local MHPS policy, and the term of that policy which required the medical director to act as the case manager in cases involving consultants, had been incorporated into his contract of employment. By delegating the function of case manager to Ms Y, the Trust had acted in breach of Dr MN's contract. Going forward, the medical director would need to serve as the case manager unless exceptional circumstances applied. The High Court also awarded Dr MN his costs in full. For details of the High Court decision, please see our earlier alert here.
The Trust appealed to the Court of Appeal both in relation to the substance of the decision and the award of costs.
Court of Appeal decision
The Court of Appeal dismissed the appeal in full. It broadly agreed with the reasoning of the High Court and held that the local MHPS provision was incorporated into Dr MN's contract of employment and that the medical director was required to act as case manager. The Court confirmed that:
- Terms in collective agreements may be contractually binding where they are apt for incorporation into an individual employment contract.
- Relevant factors include the importance of the provision to the working relationship, its level of detail and certainty, its context, and whether it is workable in practice.
- The term in question was clear and imposed a specific obligation on the medical director. The provision used mandatory language - “the Medical Director will act as the Case Manager” - which contrasted with the expressly permissive “may delegate” in “other cases”, i.e. where the subject of the investigation was not a consultant. The Court held that this language conferred enforceable rights on consultants and corresponding obligations on the Trust.
- The provision imposed a mandatory requirement: the medical director must act as case manager for consultant investigations unless exceptional circumstances (e.g. conflict of interest or illness) prevent this.
- The provision was also certain and workable. The Court was unpersuaded that the requirement would be unmanageable in practice, noting evidence that medical directors often already act as case managers in large numbers of consultant cases nationally.
- Given the serious potential impact of disciplinary investigations on a doctor’s career and reputation, the MHPS provision was sufficiently important to form part of the contractual relationship.
Finally, the Court dismissed the Trust’s appeal against the costs order. The Court of Appeal confirmed that it could not interfere with the exercise of the High Court Judge’s broad discretion in relation to costs unless the Judge erred in principle, failed to have regard to a relevant consideration, had regard to an irrelevant consideration, or exercised his discretion in a manner which was not reasonably open to him. The Court of Appeal did not consider those requirements were fulfilled in this case. Dr MN was entitled to the award of costs even though not every issue needed to be decided by the High Court nor was decided in his favour.
What does this mean for NHS employers?
It is important to keep in mind that this is a case about the interpretation of a particular Trust's local MHPS policy. It does not mean, more generally, that NHS employers cannot delegate the function of case manager, in cases involving consultants, to someone other than the medical director. Whether or not this is permissible will require analysis of relevant local policies.
Employers will need to consider carefully whether the relevant provisions are incorporated into individual contracts and whether any variation can lawfully be made. As part of this analysis, it will be necessary to look at whether the terms are clear and precise and also whether they go to matters of real importance, such as potential impact on a doctor’s career and reputation, as this will mean they are more likely to be contractually binding. Where an employer considers that a contractual provision in its MHPS policy has become unworkable in practice then consultation should be carried out, with its medical staff side unions, to seek to amend the local policy. Many employers will however already have considered in their MHPS policies who are appropriate alternate managers or directors who can carry out the prescribed roles (such as Case Manager or Case Investigator) to allow for some flexibility should a particular designated manager or director be unable to undertake a role.
