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<\/div>\n?The case of Department for Transport v. Sparks<\/em><\/a> is a helpful reminder that just because a provision is contained in a policy in the U.K., rather than the contract of employment itself, does not necessarily mean that it is noncontractual.<\/p>\n The Facts<\/p>\n The Department for Transport wanted to unilaterally implement a new attendance management procedure that contained an earlier trigger point for disciplinary action than the 21 days’ absence provided for in the existing procedure.<\/p>\n The employees claimed that this meant the current absence management procedure was a contractual term that could not be changed without their agreement.<\/p>\n The Decision<\/p>\n The Court of Appeal agreed. The absence management procedure had been incorporated into the employees’ contracts and, therefore, could not be changed unilaterally.<\/p>\n The court found that the Department for Transport had intended the staff handbook to be contractual. Although many sections were meant for guidance only, and therefore were not apt for incorporation, the provisions in relation to absence management were sufficiently clear and precise to be incorporated. The language of the introduction to the provisions pointed toward contractual status.<\/p>\n In Practice<\/p>\n Whether the terms of an HR policy are contractual will depend on: The wording of your policies and contracts, and whether implied contractual rights have arisen, which will depend on the circumstances\u2014for example, the policy terms and extent to which they have been followed in the past.<\/p>\n It is possible for a policy or handbook to be largely a matter of guidance and good practice but with specific provisions having contractual force.<\/p>\n Given the risks involved in amending a contractual policy or procedure unilaterally, employees’ consent will be required to make any changes. This is something employers will usually want to avoid. To reduce the likelihood of policy terms having contractual status:<\/p>\n Julie Keir is an attorney with Brodies LLP, a member firm of <\/em>TerraLex<\/em><\/a>, in Edinburgh, Scotland. \u00a9 2023 Brodies LLP. All rights reserved. Reposted with permission of <\/em>Lexology<\/em><\/a>.<\/em><\/p>\n\n
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