KB-2025-001016 - [2025] EWHC 2023 (KB)

Once again this is not a matter that I am obliged to consider given that the investigation has a long way to go and it is not known what options might be presented by the investigator for consideration by the Case Manager. However, as I have heard full argument on the matter and as this may be of some assistance to the parties and possibly avoid the need to engage in litigation later on in the proceedings, I will consider the arguments made by the parties.

It is clear from the case law that the Trust will not be permitted to side-step the procedures set out in E27 by treating the matters complained of as being concerned with “trust and confidence”, and therefore subject to a different process, when they ought to be treated as matters of conduct and/or capability. That would itself be a breach of the duty of trust and confidence that the Trust owes to Dr MN.

In the instant case, the Terms of Reference for the investigation concern matters that go to Dr MN’s conduct and/or capability, even if the effect of these matters if proven would impact on, or affect, the trust and confidence that the Trust would have in Dr MN. The fact that there has been mention of reputational issues in correspondence from the Trust or its solicitors, and those matters have been referred to in the Amended Defence (paragraph 29.2 refers to “Reputational risk management”) does not alter what is contained within the Terms of Reference. The Terms of Reference do not call for investigation into reputational issues.

Accordingly, based on the investigation so far, and the tramlines set by the Terms of Reference, it would not be open to the Trust to change course and subject Dr MN to a different process at the end of the investigation merely because the Trust wishes to label the matters being investigated as being related to trust and confidence. The matters being investigated are matters of conduct and/or capability, even if they impact on trust and confidence.

The matter would be different, however, if as part of the investigation the Trust explicitly stated, by amending the Terms of Reference, that it would be examining the impact that the arrangement by Dr MN of the observational visits by Lucy Letby had on the reputation of the Trust. Mr Sutton KC accepted, rightly in my judgment, that this would be a matter of trust and confidence that would not also call into question Dr MN’s conduct and/or capability. In statutory employment law terms, this would fall within the ambit of a ‘some other substantial reason’ for the dismissal: see e.g. Leach v Office of Communications [2012] ICR 1269, where it was held that the risk of reputational damage to an employer could justify a dismissal for ‘some other substantial reason’ of an employee who been accused of being a child sex offender and a continuing risk to children, albeit the accusation was not substantiated.

If the Trust did choose to alter the scope of the investigation to include reputational issues, then it would be open to the Trust (if the evidentiary threshold was made out) to take Dr MN through a procedure in which the reputation issue could be determined as a matter of trust and confidence, so long as no reliance was placed on allegations which went to Dr MN’s conduct and/or capability. In those circumstances, there could be no suggestion that this amounted to a side-stepping of E27 policy and procedures.