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If you are looking to update outdated policies and procedures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.
Dentons is the world's first polycentric global law firm. A
top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm
is committed to challenging the status quo in delivering consistent
and uncompromising quality and value in new and inventive ways.
Driven to provide clients a competitive edge, and connected to the
communities where its clients want to do business, Dentons knows
that understanding local cultures is crucial to successfully
completing a deal, resolving a dispute or solving a business
challenge. Now the world's largest law firm, Dentons'
global team builds agile, tailored solutions to meet the local,
national and global needs of private and public clients of any size
in more than 125 locations serving 50-plus countries.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The seminar will take place on 31 March 2017. It aims to provide German companies with an overview of the latest developments in relation to insurance coverage, banking transactions and legal aspects of doing business with Iran.
The employment landscape is one that is constantly shifting. Employers who fail to keep up with the changes do so at their peril.
We are pleased to invite you to this seminar, designed to help in-house counsel and HR practitioners get to grips with key recent and forthcoming developments in employment, pensions and immigration law and practice and what they mean for your workforce.
In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
Case law concerning the Agency Worker Regulations remains limited. We recently advised a recruitment business involved in a dispute with a "temp" and a hirer regarding who was liable for an alleged breach of AWR Regulation 5.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).