In a recent Court of Appeal case (Department for Transport v Sparks and Others) the Court had to consider whether a sickness absence policy in a Staff Handbook had become a term of the contract between The Department for Transport and the Employees. 

The Staff Handbook contained a provision that where in any 12 month period the employee had taken a number of short term absences as sick leave which together exceed 21 working days, the Line Manager will discuss the attendance record with the employee.  The provision further stated that only if the employee had exceeded the trigger point will the procedures for maintaining satisfactory standards of attendance be applied.  

The Department for Transport sought to implement a new policy for attendance management and the employees sought a court ruling that that policy was not effective to vary the contractual terms that were incorporated into their Employment Contracts by the Staff Handbook, and therefore the new policy did not override the contractual terms. 

The particular problem faced by the Department for Transport in this case was that its Departmental Staff Handbook stated in broad terms that the Handbook sets out many of the terms and conditions and that “All of the provisions of the Departmental Staff Handbook which apply to the you and are apt for incorporation, should be incorporated into your Contract of Employment.”  This wording left it open to the Court to decide which terms were apt for incorporation and which were not, with the result that the decision (upheld by the Court of Appeal) was that the provisions of the Handbook relating to dealing with sickness absence were of contractual effect and could not be unilaterally changed by the Department.  

This case underlies the importance of clearly stating what employment documentation is contractual and what is not.  

Our preference is for contractual terms to remain where they should be in the Contract of Employment and for non-contractual policies and procedures to be contained in the Handbook.  

To the extent that there is a mixture of contractual and non-contractual items in any Staff Handbook, these items should be explicitly and clearly identified with no grey areas, so it is not left open to expensive court proceedings for a Judge to decide the question. 

As an aside, the employer was also criticised in that case as its Handbook was only available on its intranet and only existed in an electronic form.  Various provisions had been amended, deleted or inserted without maintaining the possibility of retrieving deleted material so there is no historic record.  This was criticised as unsatisfactory by the Judges.