Dr MN v NHS Foundation Trust L

A term in a collectively negotiated employment policy is contractual only if, viewed objectively and in context, it is apt for incorporation. Relevant indicia include its importance to the working relationship, level of detail, certainty, context and workability. A provision stating that the Medical Director will act as case manager for an investigation involving a consultant imposes a mandatory obligation, particularly when contrasted with an express power to delegate in other cases. It confers a corresponding right on the employee and obligation on the employer. Delegation may be implied only for exceptional circumstances such as conflict of interest or illness. An appellate court should respect a first-instance costs discretion unless there is an error of principle or an unreasonable exercise of discretion.

Dr MN, a consultant employed by NHS Foundation Trust L, brought a breach of contract claim concerning the Trust’s investigation into matters arising from his association with Lucy Letby and an alleged patient-confidentiality breach. The High Court, Sheldon J, held that the Trust’s E27 policy was incorporated into Dr MN’s employment contract and that paragraph 1.6 required the Medical Director to act personally as Case Manager in an investigation involving a consultant, subject only to exceptional circumstances. A declaration was granted and the Trust was ordered to pay Dr MN’s costs in full: [2025] EWHC 2023 (KB). The Trust appealed on incorporation, contractual effect, interpretation, delegation and costs. The central issues were whether paragraph 1.6 was contractual and whether it permitted delegation to a senior manager.

1. The appeal was dismissed, including the appeal against the costs order. The High Court was correct on the incorporation and interpretation issues.
2. A collective agreement or policy is not ordinarily binding as such. Particular terms may nevertheless be incorporated into an individual employment contract where they are objectively apt for incorporation. The relevant inquiry is contextual and includes the provision’s importance to the working relationship, detail, certainty, context and workability. The ordinary principles of contractual interpretation and implication apply: the court identifies what the parties agreed, rather than what it considers reasonable.
3. Paragraph 1.6 of Appendix A to E27 was apt for incorporation. Its language and context conferred rights on individual staff and imposed obligations on the Trust. The provision was important for a consultant because the Case Manager may decide whether the matter proceeds into a process with serious consequences for career and reputation.
4. On its natural meaning, the words will act meant must act. They imposed an obligation on the Medical Director to be Case Manager in cases involving Clinical Leaders and consultants. The express contrast with may delegate in other cases confirmed that general delegation was unavailable for consultant cases. The separate delegation provision for exclusion cases did not alter that conclusion because exclusion was a distinct process.
5. The contract contained an implied qualification permitting delegation where necessary, for example because of an insuperable conflict of interest or illness. No such exceptional circumstance existed. The interpretation was workable and did not constitute impermissible micro-management. Any general modification of the obligation required consensual amendment with the Local Negotiating Committee and continued consistency with MHPS.
6. The proposed cross-appeal concerning trust and confidence was not addressed because it raised hypothetical issues unnecessary to the result. The Judge’s broad costs discretion was also properly exercised. The Court of Appeal would not interfere absent an error of principle, failure to consider a relevant matter, reliance on an irrelevant matter, or a decision outside the reasonable range. Full costs were therefore upheld.

• Court of Appeal (Civil Division): The Trust’s appeal was dismissed. The declaration that the Medical Director must act as Case Manager, subject to exceptional circumstances, and the full costs order were upheld: [2026] EWCA Civ 71.
• High Court of Justice, King’s Bench Division: Sheldon J allowed Dr MN’s breach of contract claim, granted declaratory relief and ordered the Trust to pay his costs in full: [2025] EWHC 2023 (KB).