When is a term of a staff policy ‘apt for incorporation’ into an employee’s contract of employment? That was the question posed for the Court of Appeal in Sparks v Department for Transport.

At the heart of this case is an extraordinary provision which has now been recognised as forming part of the terms and conditions of employment enjoyed by the claimant and other employees of the various employers (e.g. DVLA) found within the Department for Transport.

In any given year an employee could be absent from work for 21 separate days before his manager can start any form of formal remedial action. 

Various versions of the Handbook clause were available to the Court.  The one used read as follows:

Cumulative short-term absences

10.1.18 Where in any 12 month period you have taken a number of short term absences as sick leave which together exceed 21 working days, your line manager will discuss your attendance record with you. Only if you have exceeded these ‘trigger points’ and, consequently, your line manager perceives a problem with your attendance will he or she take the matter forward in accordance the procedures set out in Annex A, Maintaining satisfactory standards of attendance.

To put that in context, consider an employee who has one day of absence on a self certification basis every week in a calendar year.  That would mean it would not be until the first absence in June that his manager would be entitled to escalate the issue in terms of the attendance management policy.

You can see why the Department of Transport did not want that provision to be given the status of a contractual term.  Any attempt to quantify days in this way not only inhibits management, but it can also lead to a misguided sense of entitlement on the part of employees (“I have sick days still to use”)  and both these factors drive up absence levels, the direct opposite of the policy objective.

The case itself gave rise to no new law and was resolved by the classic test used in such situations, to determine if the clause in question was apt for incorporation.

Putting that in everyday language, a written provision is appropriate (apt) to be treated as part of the individual contract of employment (incorporated) if the wording looks contractual (we will do something) as opposed to aspirational (we want to do something).

It’s not a difficult test and the Court’s decision is not a surprise (as I suggest above, the litigation may have been driven by a combination of desperation and exasperation).  But it is a warning to those developing policies.  By all means be progressive and improve working conditions, but stop short of making contractual promises which will be treated as binding and so reduce the scope that management should always have to adapt policies to cater for individual circumstances, not all of which can be predicted when policies are written.

One other aspect of this judgment caught my eye.  You will have realised on reading the relevant clause above that managers, unions and employees in the Department need to know the terms of Annex A.

There’s nothing wrong with making reference to another source document, at least not in principle.  The problem starts when the document can’t be found!

In the circumstances, McCombe LJ was being quite restrained in his criticism of this extraordinary state of affairs:

‘At the beginning of the hearing of the appeal there was considerable difficulty in identifying the precise provisions of the Handbook that were in operation at the relevant times, in particular because it proved impossible for anyone to find the “Annex A” referred to in the quotation immediately above. The problem arose because the Handbook has, for some time, only existed in electronic form. Various provisions have been amended, deleted or inserted without maintaining the possibility of retrieving deleted material. The relevant Annex A has now been lost for all time. Clearly, this is far from satisfactory on a continuing basis for employee and employer alike and was not satisfactory for the purposes of our task in construing the relevant provisions at issue in the proceedings.’

All in all, it sounds like time to set new contractual conditions for this workforce, and that is always in the gift of the employer even if ultimately by termination and re-engagement.