Facts: The Department of Transport’s staff handbook contained the following provision:
Where in any 12 month period you have taken a number of short-term absences as sick leave which together exceed 21 working days, your line manager will discuss your attendance record with you. Only if you have exceeded these ‘trigger points’ and, consequently, your line manager acknowledges that there is a problem with your attendance will he or she take the matter forward in accordance the procedures [sic] set out in Annex A – Maintaining satisfactory standards of attendance.
Having regard to the language used … the clause was apt for incorporation as a contractual term
Subsequently, the department purported to introduce a new attendance management policy. The High Court was asked to consider whether the change was legitimate or whether the original provision formed part of the contractual terms of employment between the department and Ms Sparks ‘or were mere notes of guidance and good practice of no legal force’ (para 1). The judge ruled that the original provision had contractual effect, and that accordingly the attendance management regime had not been effectively varied. The department appealed.
Decision: The Court of Appeal said that the key question was:
… whether the provision in question is apt for incorporation into the contract between employer and employee. The starting point ... is the language of the employment documents as a whole ... contractual intention when expressed in a written document must be ascertained in accordance with ordinary principles of contractual construction, but where a document is incorporated by general words it is necessary to ask whether any particular part of the document is apt to be a term of the contract. Each set of employment documents will differ and each has to be analysed in accordance with its own terms, not over-rigidly controlled by what another court may have thought of a different set of documents, dealing perhaps with a similar subject matter to the one in question (para 18).
The answer to the question, McCombe LJ said, was as follows:
It may be a generally desirable feature of industrial management... to handle these matters through non-contractual policy, but that does not appear to me to prevent a particular provision... if considered to be worthy of separate treatment, receiving such treatment in a different part of the employment documents and being apt for incorporation into the contractual terms... this provision is not simply part of a general code or policy; it seems to me to go beyond mere ‘framework for discussion’ or ‘prompts for managers’ (para 33).
Having regard to the language used, its place in the handbook and the contextual wording, the clause was apt for incorporation as a contractual term. It was not an aspect of ‘micro-management’ ; nor did it prevent the employer and employee engaging constructively to manage such absence (para 34).
Comment: This case provides yet another reminder that when employers contemplate changing their arrangements with their staff, it is vitally important to establish whether that change entails a change to contractual terms. Failure to do so and failure to implement the change in a legally effective manner can render the whole change process futile.