The Court of Appeal has upheld the decision of the High Court in Department for Transport -v- Sparks and Others 2016. The provisions of the absence management policy contained in a staff handbook were, on the facts of this case, apt for incorporation. This meant that the policy was contractual and could not be unilaterally altered.

The DfT staff handbook was formed of two parts. Part A was said to contain terms and conditions, and those which were “apt for incorporation” would be incorporated into the contract. Part B contained “procedures and guidance” relevant to the employment relationship. The particular provision concerned appeared in Part A and specified that if staff exceeded a ‘trigger point’ of 21 days’ short-term sickness absence during a 12 month period, line managers would take this forward in accordance with specified procedures. The question was whether this trigger period of 21 days was contractual or not (as the DfT had later sought to amend it unilaterally).

It was held that the term was apt for incorporation. Although the Court agreed with an earlier comment of Lord Woolf, in which he stated that it is desirable for absence management issues to be dealt with largely as matters of guidance and good practice, the Court held that this does not prevent a specific provision relating to that area from having contractual force if that is the proper construction of the document as a whole. Here, the words introducing the handbook pointed to its contractual nature, and the language in the relevant clause was consistent with this. Both the introductory wording and the provision itself suggested that it was intended to confer a right on employees, as opposed to being mere guidance. The appeal was therefore dismissed.