The Department for Transport (DfT) operated a
departmental staff handbook (Handbook) which
applied to each of its agencies. The Handbook contained an
attendance management procedure which was then fundamentally the
same across each of the agencies.
The part of the Handbook which dealt with attendance management
stated that all of its terms which were apt for incorporation were
to be incorporated within the employee's contract of
The provisions in the Handbook regarding varying terms and
conditions were unclear but required the DfT to consult before
making any changes to employees' contracts. If an agreement
could not be reached, changes could only be made if they were not
detrimental to the employees.
The DfT had conducted an unsuccessful negotiation with staff
regarding the implementation of a new attendance management
procedure that would apply equally to each agency. The purpose of
the change was to reduce the number of days' absence allowed
before a formal process would be commenced.
The High Court found that the provisions of the Handbook
relating to attendance management were incorporated within the
employees' contract of employment and that the DfT could not
change them unilaterally. The DfT appealed.
The Court of Appeal agreed with the High Court and found that
the absence management procedure had been incorporated into the
employees' contracts. The Court of Appeal confirmed that the
specific terms relating to absence management were designed to
confer a right on the employees which went further than good
practice guidance and they were "apt for incorporation".
Therefore, in order to make any amendments to the policy, the DfT
would require the employees' consent.
Employers will generally want to avoid a situation where they
are unable to amend policies without employee consent. To make sure
that this is the case, any policy or handbook should contain a
clear statement that it is non-contractual. It is also good
practice to reserve the right to make changes to the policy as and
when the employer sees fit.
If you are looking to update outdated policies and procedures
that may have become contractual, for example through custom and
practice, we would strongly advise that you take advice before
doing so to avoid encountering any problems similar to those seen
in this case.
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Court of Appeal has held that where a contract of employment lacks a provision for when notice of termination takes effect, it is effective from when the employee personally takes delivery of the letter containing notice.
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