Absence Triggers in Staff Handbook Incorporated into Employees’ Contracts
An employer had not been entitled to change the absence triggers in an absence management policy. The provisions were contractual and could therefore only be changed with the employees’ agreement.
The Court Appeal has upheld a High Court decision that absence triggers contained in an employer’s absence management policy in the staff handbook had been incorporated into employees’ contracts. As a result, the employer’s imposition of new absence triggers was ineffective and the new triggers were not binding on the employees.
In Sparks v Department for Transport, the Department for Transport (DfT) was responsible for a number of agencies, each of whom had a staff handbook based on a standard form across the DfT. However, the number of days’ absence required before a formal absence process was triggered varied between agencies. The DfT wished to harmonise the absence triggers.
The handbook stated that Part A, which contained the absence management policy, was incorporated into employees’ contracts. It also provided that any changes to employees’ terms and conditions should be consulted upon with the union and if no agreement was reached, the DfT could only make unilateral changes if they were not detrimental to the employees. After failing to reach agreement with the union, the DfT imposed a standardised absence management procedure across the agencies.
The claimants applied to the High Court for a declaration. It ruled that whilst some sections in Part A of the handbook were meant as guidance and so were not suitable provisions for incorporation into the employment contract, the absence triggers in the absence management policy were sufficiently clear and precise to be incorporated. In addition, the changes were detrimental because employees could face sanctions at an earlier stage. The changes could not therefore be introduced without the employee’s agreement.
The DfT appealed.
The Court of Appeal upheld the High Court decision. The wording in the handbook was sufficient to incorporate the absence triggers. The introductory wording stated that Part A was incorporated and the chapter on health stated that clause 10 (which included the absence triggers) set out the terms and conditions of employment relating to sick leave and to the management of poor attendance. The provisions also indicated that they were designed to confer a right on employees over and above good practice guidance contained in the policy sections of the handbook and they were therefore apt for incorporation.
There was therefore no reason to overturn the High Court’s decision.
Employers should think very carefully about which parts of the employee handbook, if any, are intended to be contractual and which are not, bearing in mind that they will not be able to change contractual terms without the employee’s agreement (unless there is a very clear contractual right to do so and even then it will not be easy). Procedural provisions and guidance are not suitable for incorporation in any event and will not be contractual even if they are stated to be.
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