Employers may wish to review their staff handbooks and, in particular, what is included in any section expressly stated to be contractual to the extent the terms are apt for incorporation. The fact that a procedure includes matters which are clearly no more than guidance will not prevent specific parts of the procedure being deemed apt for incorporation. Employers may prefer to have handbooks which are clearly stated to be completely non-contractual.
In Department for Transport v Sparks, the Court of Appeal has ruled that the trigger for an absence management procedure was "apt for incorporation" into employee's contracts. As it was contained in a part of the staff handbook which expressly stated that all of its terms that were apt for incorporation were to be incorporated, the trigger point was a contractual entitlement which could not be varied detrimentally by the employer without agreement. The Court noted that there would be no inconsistency in sickness management procedures being largely matters of guidance and good practice, but with specific provisions having contractual force, if that was the proper effect of the documents as a whole.
The Court also noted that it was far from satisfactory that the employer had failed to retain previous versions of its electronic handbook when it was updated from time to time, making it difficult to identify the precise provisions in operation at the relevant times. Employers should put processes in place to preserve historic employment documents kept in electronic form – a copy should be made and stored each time documents are updated.