“1. Whether policy E.27 is incorporated into the employment contract. 2. Whether the following provision in Policy E27 Appendix A at paragraph 1.6 is apt to be given contractual effect: The Medical Director will act as the Case Manager in cases involving Clinical Leaders ie Clinical Directors and Service Group Leads and consultants and may delegate this role to a senior manager to oversee the case on his or her behalf in other cases. 3. Whether by appointing and/or delegating Ms Y to undertake the role of Case Manager in C’s case, D has acted (and continues to act) in breach of Policy E27 Appendix A at paragraph 1.6. 4. If issues (1) - (3) are determined in favour of D: (a) whether, by appointing Ms Y as Case Manager and/or delegating the role of Case Manager to her, D has acted (and continues to act) in breach of the implied terms of the employment contract. (b) Whether, by authorising Ms Y to continue to undertake the role of Case Manager, in circumstances where she has provided evidence to the Thirlwall Inquiry in relation to matters related to the subject matter of D’s ongoing internal investigation, D has breached (and continues to breach) the implied terms of the employment contract. 5. If the Investigation Report identifies concerns which relate to C’s conduct and/or capability, is D required to implement the procedures set out in the E27 Policy at Section 3 and/or Section 4 before taking action in relation to C’s employment. 6. If C establishes a breach of the express and/or implied terms of the employment contract, should the Court exercise its discretion to grant declaratory or injunctive relief and if so on what terms?”
“The cases establish that what is important is to seek to identify what the parties must objectively have intended on the basis of the words used and their context. A number of other factors relevant to this question have been identified in the cases on this subject, and are helpfully summarised in Hussain v Surrey and Sussex Healthcare NHS Trust[2011] EWHC 1670 by Andrew Smith J at [168], including that account is to be taken of the importance of the provision to the working relationship between the employer and employee and its relationship to the contractual arrangements between them; to the level of detail prescribed by the provision and the need for courts to avoid becoming involved in the micro management of internal procedures; to the certainty of the provision since the more vague and discursive the provision, the less apt it will be to have contractual status; and to whether the provision would be workable if given contractual status.”
“The principles to be applied can therefore be summarised. The relevant contract is that between the individual employee and his employer; it is the contractual intention of those two parties which must be ascertained. In so far as that intention is to be found in a written document, that document must be construed on ordinary contractual principles. In so far as there is no such document or that document is not complete or conclusive, their contractual intention has to be ascertained by inference from the other available material including collective agreements. The fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract. Where it is not a case of express incorporation, but a matter of inferring the contractual intent, the character of the document and the relevant part of it and whether it is apt to form part of the individual contract is central to the decision whether or not the inference should be drawn.” (Emphasis added)
“168. There is no single test as to whether an employer and employee intended to agree that provisions of an agreement such as the Practitioners Disciplinary Procedure should be contractual between them (rather than advisory or hortatory or an expression of aspiration), and if so which provisions. The indicia that a provision is to be taken to have contractual status which are, I think, of some relevance to this case include these: i) The importance of the provision to the contractual working relationship between the employer and the employee and its relationship to the contractual arrangements between them: as I understand it, it is common ground in this case that, because parts of the Practitioners Disciplinary Procedure are contractual, in some circumstances the Trust might exclude Dr Hussain or bring disciplinary proceedings for misconduct against her. The implication of this, as it seems to me, is that provisions important to implementing the agreement about exclusion and about conduct hearings are also apt to be contractual: the more important the provision to the structure of the procedures, the more likely it is that the parties intended it to be contractual. As Auld LJ said in Keeley v Fosroc International Ltd,[2006] IRLR 961 (which concerned whether provisions relating to enhanced redundancy payments in a Staff Handbook were enforceable as part of individual contracts of employment), ‘Highly relevant in any consideration, contextual or otherwise, of an “incorporated” provision in an employment contract, is the importance of the provision to the over-all bargain, here, the employee’s remuneration package – what he undertook to work for. A provision of that sort, even if couched in terms of information or explanation, or expressed in discretionary terms, may still be apt for construction as a term of his contract … .’ (at para 34). ii) The level of detail prescribed by the provision: as Penry-Davey J said in Kulkarni v Milton Keynes Hospital NHS Trust,[2008] IRLR 949 at para 25, the courts should not ‘become involved in the micro-management of conduct hearings’, and the parties to the contract of employment are not to be taken to have intended that they should be. (In the Court of Appeal in Kulkarni, … at para 22, Smith LJ endorsed this observation of Penry-Davey J.) iii) The certainty of what the provision requires: … if a provision is vague or discursive, it is the less apt to have contractual status. iv) The context of the provision: a provision included amongst other provisions that are contractual is itself more likely to have been intended to have contractual status than one included among other provisions which provide guidance or are otherwise not apt to be contractual. v) Whether the provision is workable, or would be if it were taken to have contractual status; the parties are not to be taken to have intended to introduce into their contract of employment terms which, if enforced, not be workable or make business sense: see Malone v British Airways,[2010] EWCA Civ 1225 at para 62.” i) The importance of the provision to the contractual working relationship between the employer and the employee and its relationship to the contractual arrangements between them: as I understand it, it is common ground in this case that, because parts of the Practitioners Disciplinary Procedure are contractual, in some circumstances the Trust might exclude Dr Hussain or bring disciplinary proceedings for misconduct against her. The implication of this, as it seems to me, is that provisions important to implementing the agreement about exclusion and about conduct hearings are also apt to be contractual: the more important the provision to the structure of the procedures, the more likely it is that the parties intended it to be contractual. As Auld LJ said in Keeley v Fosroc International Ltd,[2006] IRLR 961 (which concerned whether provisions relating to enhanced redundancy payments in a Staff Handbook were enforceable as part of individual contracts of employment), ‘Highly relevant in any consideration, contextual or otherwise, of an “incorporated” provision in an employment contract, is the importance of the provision to the over-all bargain, here, the employee’s remuneration package – what he undertook to work for. A provision of that sort, even if couched in terms of information or explanation, or expressed in discretionary terms, may still be apt for construction as a term of his contract … .’ (at para 34). ii) The level of detail prescribed by the provision: as Penry-Davey J said in Kulkarni v Milton Keynes Hospital NHS Trust,[2008] IRLR 949 at para 25, the courts should not ‘become involved in the micro-management of conduct hearings’, and the parties to the contract of employment are not to be taken to have intended that they should be. (In the Court of Appeal in Kulkarni, … at para 22, Smith LJ endorsed this observation of Penry-Davey J.) iii) The certainty of what the provision requires: … if a provision is vague or discursive, it is the less apt to have contractual status. iv) The context of the provision: a provision included amongst other provisions that are contractual is itself more likely to have been intended to have contractual status than one included among other provisions which provide guidance or are otherwise not apt to be contractual. v) Whether the provision is workable, or would be if it were taken to have contractual status; the parties are not to be taken to have intended to introduce into their contract of employment terms which, if enforced, not be workable or make business sense: see Malone v British Airways,[2010] EWCA Civ 1225 at para 62.”
“16. First, in an employment context there is a power vested in the employer to manage employees, which includes establishing relevant facts and deciding how these facts affect future relations. Even where internal procedures are detailed the purpose of those procedures is to facilitate the employer’s managerial power. Where detailed procedures are silent on the matter then the fallback is that it is a managerial discretion for the employer to decide upon in relation to that gap. In this regard see MacMillan[2014] EWCA 1031 , paragraph 51 and the judgments cited therein. 17. Secondly, it is accepted that there are implied terms in the Applicant’s contract that neither party will without reasonable and proper cause act in a manner that is calculated or likely to destroy or seriously damage the relationship of trust and confidence and that the defendant will in any event act fairly in the conduct of an internal disciplinary or similar process. It is therefore accepted that implied terms constrain the exercise of the employer’s discretion. But it is also submitted that the discretion remains broad: See in this regard Braganza[2015] UKSC 17 at 30 and Yapp[2014] EWCA Civ 1512 at paragraphs 59-61. In those judgments there is reference to the discretion being akin to a Wednesbury rationality test in that an employer may properly be able to exercise a discretion over a range of possible reasonable options. 18. Thirdly, it is submitted that the court should not engage in micro-management of employment procedures. Illustrations of matters which the courts have treated as micro-management may be found in the judgment of the Court of Appeal in Kulkarni[2009] EWCA Civ 789 . In that case the High Court and Court of Appeal refused to interfere in a panel where the issue concerned the alleged wrongful admission of prejudicial evidence; see also Chhabra v West London Mental Health Trust[2013] UKSC 80 , at paragraphs 36-40. 19. Fourth, there is a public interest in allowing internal processes to run their course and courts should be slow to interfere if disputed issues can be sorted out and resolved within the framework of the internal procedure itself. See for example, Makhdum[2012] EWHC 4015 per Beatson J. at paragraph 51 where the judge indicated that it would in effect require serious irregularities before the court would consider interfering. He also intimated (see paragraph 52) that where the parties have agreed upon a process the court should prima facie respect the contractual intention of the parties and allow the process to occur. Similar observations were made by Mann J. in Hendy v MOJ[2014] EWHC 2539 at paragraph 49 and see also Sarker[2015] EWHC 165 to similar effect. 20. Fifthly, there is a public interest that matters which need to be taken of a substantive nature, (which would in my view include a decision upon the capability of a practitioner to work within the NHS) should be taken by the mandated expert panel: See by way of illustration Dr A v HTX[2012] EWHC 857 (QB) at paragraph 203. 21. Finally, I should refer to the decision of Simler J. in Chakrabarti[2014] EWHC 2735 at paragraphs 116 and 160-163 for the proposition that procedures should be applied with flexibility.”
“… I would add that, for my part, this provision would also meet the test suggested by Dyson LJ in Keeley’s case[2006] IRLR 961 , para 36. If the provisions had been set out in the same terms in a formal contractual document could it seriously have been argued as a matter of construction that it was not apt for a contractual term and, on that account, not part of the contract? I think not.”
“The purpose of interpretation and of a term implied by fact is to identify what the parties have expressly or impliedly objectively agreed, not what the court thinks that they should have agreed. Nor is it the function of a court when interpreting an agreement or implying a term by fact to relieve a party from the consequences of poor advice or bad judgment.”
“This justification for the strict constraint applied to the implication of terms by fact was approved by the Supreme Court in Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd[2016] AC 742 , where, at paras 15 to 31, Lord Neuberger PSC authoritatively restated the long established and consistent learning on this question. It is unnecessary to rehearse the principles that govern when a court may properly imply a term by fact into a contract. They are not in dispute. It is sufficient for our purposes simply to reiterate that, to imply a term by fact, the term must be necessary for business efficacy or the term must be so obvious that it goes without saying; it must be capable of clear expression; and it must not contradict any express term of the contract. Importantly, as Lord Hughes JSC emphasised in Ali v Petroleum Co of Trinidad and Tobago[2017] ICR 531 , para 7 (‘Ali’), ‘the process of implying a term into the contract must not become the rewriting of the contract in a way which the court believes to be reasonable, or which the court prefers to the agreement which the parties have negotiated’.”
“When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to ‘what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean’, to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd[2009] AC 1101 , para 14. And it does so by focussing on the meaning of the relevant words, in this case clause 3(2) of each of the 25 leases, in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions. In this connection, see Prenn[1971] 1 WLR 1381 , 1384-1386; Reardon Smith Line Ltd v Yngvar Hansen-Tangen (trading as HE Hansen-Tangen)[1976] 1 WLR 989 , 995-997, per Lord Wilberforce; Bank of Credit and Commerce International SA v Ali[2002] 1 AC 251 , para 8, per Lord Bingham of Cornhill; and the survey of more recent authorities in Rainy Sky[2011] 1 WLR 2900 , paras 21-30, per Lord Clarke of Stone-cum-Ebony JSC.”
“24. The reasons for my delegation of the case manager function include: a. It is vital that the individuals carrying out those roles are able to act independently in order to ensure a fully fair process. This is achieved by separating me from the process, as I already have a degree of knowledge of the issues and have had to form an opinion on patient safety risk and whether to impose restrictions on the doctor’s practice I may also be aware of previous issues raised in respect of the practitioner’s conduct or capability and as I also function as the Trust’s responsible officer (RO) I have oversight of all appraisal and revalidation information which includes patient and colleague feedback. By choosing a case manager who is not from within the home Division of the doctor’s speciality and has no foreknowledge of any issues in relation to the doctor, it allows an independence of mind that I as a human being may not be able to guarantee despite my best intentions. b. The breadth of my wider responsibilities within the Trust (having responsibility for over 500 consultants and Trust doctors) make it all but impossible for me to function as the day-to-day case manager for all cases.” a. It is vital that the individuals carrying out those roles are able to act independently in order to ensure a fully fair process. This is achieved by separating me from the process, as I already have a degree of knowledge of the issues and have had to form an opinion on patient safety risk and whether to impose restrictions on the doctor’s practice I may also be aware of previous issues raised in respect of the practitioner’s conduct or capability and as I also function as the Trust’s responsible officer (RO) I have oversight of all appraisal and revalidation information which includes patient and colleague feedback. By choosing a case manager who is not from within the home Division of the doctor’s speciality and has no foreknowledge of any issues in relation to the doctor, it allows an independence of mind that I as a human being may not be able to guarantee despite my best intentions. b. The breadth of my wider responsibilities within the Trust (having responsibility for over 500 consultants and Trust doctors) make it all but impossible for me to function as the day-to-day case manager for all cases.”
“Where it is decided that a more formal route needs to be followed (perhaps leading to conduct or capability proceedings) the Medical Director must, after discussion between the Chief Executive and Director of Human Resources and OD, appoint an appropriately experienced or trained person as Case Investigator. The seniority of the Case Investigator will differ depending on the grade of practitioner involved in the allegation. Several clinical managers should be appropriately trained, to enable them to carry out this role when required.”
“Alternative ways to manage risks, avoiding exclusion, include: Supervision of normal contractual clinical duties by the Medical Director, or Clinical Director; Restricting the practitioner to certain forms of clinical duties; Restricting activities to administrative, research/audit, teaching and other educational duties. By mutual agreement the latter might include some formal retraining or re-skilling; Sick leave for the investigation of specific health problems.”
“2.12. The Trust Chief Executive has overall responsibility for managing exclusion procedures and for ensuring that cases are properly managed. The decision to exclude a practitioner must be taken only by persons nominated under paragraph 2.14. The case will be discussed fully with the Chief Executive, the Medical Director, the Director of Human Resources and OD, NCAS and other interested parties (such as the police where there are serious criminal allegations or the Counter Fraud & Security Management Service) prior to the decision to exclude a practitioner. In the rare cases where immediate exclusion is required, the above parties must discuss the case at the earliest opportunity following exclusion, preferably at a case conference. 2.13. The authority to exclude a member of staff is vested in the individuals outlined below: Authority to exclude Grade of Practitioner Chief Executive Medical Director Medical Director All other grades of medical staff 2.14. The Medical Director will act as the Case Manager in the case of consultant staff, or delegate this role to a senior manager to oversee the case, and appoint a Case Investigator to explore and report on the circumstances that have led to the need to exclude the staff member. The investigating officer will provide factual information to assist the Case Manager in reviewing the need for exclusion and making progress reports to the Chief Executive and Designated Board Member.”
“The proper award of costs in this matter is for the Claimant to receive all of his costs on a standard basis. The Claimant was clearly the successful party. He succeeded on issues 1-3, 5 and 6. Issue 4 was an alternative submission and would not have been required to be argued out had the Defendant accepted the Claimant’s proposed interpretation of the proper meaning of section 1.6. Whilst there were a number of pleaded matters that were not proceeded with by the Claimant (see paragraph 10 of the Defendant’s submissions on costs), these did not add substantially to the costs of the proceedings. As the Claimant was the successful party, he should also be entitled to the costs incurred with respect to the earlier hearings before Garnham J and Jeremy Johnson J, whose orders were for ‘costs in the case’.”
“There is no automatic rule requiring reduction of a successful party’s costs if he loses on one or more issues. In any litigation, especially complex litigation such as the present case, any winning party is likely to fail on one or more issues in the case. As Simon Brown LJ said in Budgen v Andrew Gardner Partnership[2002] EWCA Civ 1125 at para 35: ‘the court can properly have regard to the fact that in almost every case even the winner is likely to fail on some issues’ … (Gloster J in Kidsons v Lloyds Underwriters[2007] EWHC 2699 (Comm) )”