Provision in staff handbook

Sparks and others v Department for Transport [2016] EWCA Civ 360; [2016] All ER (D) 94 (Apr); SJ 4 May; NLJ 6 May

A provision in the employer’s staff handbook stated that where in any 12-month period the employee had taken a number of short-term absences which together exceeded 21 working days, the employee’s line manager would discuss his attendance record with him, and only if those “trigger points” had been exceeded and the line manager consequently acknowledged that there was a problem with the employee’s attendance would the line manager take the matter forward in accordance with the relevant attendance procedures. The handbook provided that all it provisions which applied to the particular employee and were apt for incorporation should be incorporated into the employee’s contract of employment. The provision in question was in a part of the handbook on ill health, which contained the following introductory words: “This chapter sets out your terms and conditions of employment relating to sick leave ... [and] the management of poor attendance....” Seven employees, all of whom were employed by different agencies within the same government department and were subject to somewhat different but materially similar provisions, brought claims contending that those provisions were terms of the contracts of employment between them and their employer. The employer maintained that the provisions were not legally enforceable contractual terms but mere notes of guidance or good practice of no legal force. The provision in respect of cumulative short-term absences in the first employee’s documents was taken to determine the question between the employer and all the employees. The judge held that the provisions were terms of the employees’ contracts of employment, and made declarations to that effect. As a result, the judge declared that a new policy of attendance management introduced by the employer in July 2012 had not been effective to vary the contractual terms of the employment contracts and was not contractually binding on the employees.