It is often the case that employers put various policies and procedures into a staff handbook so as to prevent them from becoming contractual entitlements. They hope that this enables them to change those policies more easily without the need for employee consent. Whilst it is a perfectly understandable and legitimate stance to take, the case of Department for Transport v Sparks and Others has emphasised the need for employers to take care over the wording used in staff handbooks.
In this recent case, the question arose as to whether an absence management policy in a staff handbook was 'apt for incorporation' into employee contracts. The seven claimants obtained a declaration in the High Court that a short-term absence management policy was contractual. As a result, this restricted managers' scope for taking disciplinary action until specific trigger points had been exceeded - 21 days of short-term absence in any 12-month period. The policy gave the employees ‘rights’. It was not mere guidance. The High Court rejected the DfT’s unilateral attempt to introduce a fewer number of absences to trigger the process.
The Court of Appeal agreed. Viewing the employment documents as a whole, the relevant introductory wording of the handbook pointed to a 'distinct flavour of contractual incorporation'. The fact that it might generally be desirable to handle absence matters through a non-contractual policy would not prevent a particular provision of that policy from being 'apt for incorporation'. Special care should be taken when drafting handbooks so as not to create unintended contractual rights.
One other point to note was that the handbook only existed in electronic form. The court made it clear that it was far from satisfactory that various versions of it had been irretrievably deleted on updating without previous versions being kept. So when updating an electronic handbook, a hard copy of the previous version should be retained.