Policy relating to disciplinary process was incorporated into the contract and a breach of it was found in terms of the investigation of the claimant.

The trust was investigating a complaint that the claimant, a consultant, had broken patient confidentiality. The claimant argued that his employment contract required the trust’s Medical Director to act as the case manager for the investigation. However, the Medical Director had delegated the role to the Director of Corporate Affairs.

The contract stated that disciplinary procedure would be in line with the Maintaining Higher Professional Standards framework and it stated that the medical director would act as the case manager in cases involving, among other things, consultants.  There was also a policy document within the Trust which stated the same.

At first instance, the High Court found that the policy had been incorporated into the claimant’s employment contract and it created a mandatory obligation on the medical director to investigate the case.  The Trust appealed to the Court of Appeal.

The Court of Appeal held that the High Court was correct in finding that the policy had been incorporated into the employment contract. The policy was given its natural meaning, the language was suitable for contractual obligation and for someone as senior as a consultant it was important that the investigator would be someone of senior status.  The Trust argued that it could have created micro-management of the employment relationship but this was not accepted by the Court of Appeal.  The court found that if the term was such that it would make it unworkable then it would be for the parties to agree a modification.

This case demonstrates the extent to which there can be the incorporation of frameworks and policies within the contract of employment and as a result create rights that can be relied upon by employees. In this case, it was the disciplinary policy and who was required to oversee the investigation and that it could not be delegated. This should be taken into account by employers to ensure that they are looking at policies as a whole which may form part of the employment relationship rather than merely looking at the contract in isolation to view the responsibilities and duties.

You can read the case in full here.