The background

The Department for Transport (DfT) is subdivided into various agencies, each of which have their own handbook but based on the DFT’s standard form.

However, the agencies differed in their absence management procedure.

Each had different days of absence that would trigger the formal absence procedure (ranging from 8–21).

The handbook stated that any terms in it which were ‘apt for incorporation’ were expressly incorporated into the contracts. Anything that was guidance was not.

The handbook for the DfT stated that Part A was expressly incorporated into their contracts and Part B was guidance.

The absence management procedure was in Part A. However, the majority of Part A was also guidance.

In July 2012, after an unsuccessful consultation to standardise the absence management procedure, they changed the handbook for all agencies

This stated that the formal absence procedure would be triggered after 5 days, or 3 occasions of absence within a 12 month period.

Employees who were then brought into formal procedures challenged this in the High Court.

The decision

The High Court stated that the DfT was not entitled to change any of Part A unilaterally.

And that the absence management section had been incorporated into each employee’s contract.

The DfT went to the Court of Appeal to argue that the absence management section was intended to be guidance rather than incorporated.

The Court of Appeal decided that the way the absence management section had been written sounded more like a contractual agreement than a set of guidelines or procedures.

It met the DfT’s test as ‘apt for incorporation’, so couldn’t be changed.

The DfT could only change the handbook through consultation.

And with unsuccessful consultation, could only change it if the change wasn’t detrimental to the employees.

What this means for you

We always advise that handbooks are kept non-contractual, so you can change and update your rules at any time. As well as depart from procedures if appropriate in a particular case.

However, you’re still bound by the implied term of trust and confidence.

So you can’t make significant detrimental changes at will without running the risk of breaching this and causing constructive unfair dismissal claims.

If you want the option to change your rules or depart from them in the handbook, make sure your handbooks are written in non-contractual language.

And expressly state they’re not incorporated into the contract to protect this position.

Need advice? Get in touch today

Please call Nathalie Stewart on 01482 324252.

Or email Nathalie here.

You can find out more about our Employment Law services here.