Could Staff Handbook Policies be contractual?

The Court of Appeal has upheld the High Court’s finding, that an Absence Management Policy was incorporated into employees’ contacts of employment leading to employees successfully suing their employer for changing their terms of employment without agreement.

The case of Department for Transport (DfT) v Sparks and others concerned an Absence Management Policy that was contained in the Staff Handbook. The provisions of the policy varied between the different agencies of the DfT in the number of days of absence required before the formal absence procedure would be triggered (between 8 and 21 days).

The Absence Management Policy was set out in Part A of the Handbook, which stated that all its terms, that were apt for incorporation, were to be incorporated into employees’ contracts of employment, as oppose to the provisions set out in Part B which were intended as guidance and not to be incorporated.

In July 2012 the DfT imposed a new standardised Attendance Management Procedure across all of its agencies, which provided that a process would be triggered after 5 days or 3 occasions of absence within a rolling 12 month period.

Following the Claimants application for declaratory relief, the High Court held that the provisions for attendance management set out in Part A of the Handbook had been incorporated into the employees’ contracts and the DfT were not entitled to unilaterally change the terms. The DfT has intended the whole of Part A to be contractual and while many sections were clearly meant for guidance and so not incorporated, the provisions of the Absence Management Policy were sufficiently clear and precise to be incorporated. Further the changes were detrimental to employees as the trigger for formal sanctions was much earlier under the new Absence Management Procedure. The DfT appealed the finding that the Absence Management Procedure had been incorporated into the employees’ contracts.

The Court of Appeal dismissed the appeal, stating that the introductory words of the handbook and the terms of the absence management provisions indicated that it was designed to confer a right on employees over and above the good practice guidance of the Handbook and therefore there was no reason to depart from the findings of the High Court Judge.

For all enquiries and further information please contact Polly Plant in our Employment Team on 01702 338338 (Westcliff Office) or 01277 500123 (Billericay Office) or by email pplant@paulrobinson.co.uk