In the recent case of Department for Transport v Sparks and others [2016] EWCA Civ 360, the Court of Appeal has upheld the High Court’s finding that a provision relating to absence management set out in a staff handbook, including a “trigger point” (number of absences) which could lead to formal absence management, had been incorporated into employees’ contracts of employment.

The above arose from a dispute as to whether certain parts of a department staff handbook were incorporated into employees’ contracts. Seven claimants had obtained a declaration in the High Court that certain clauses in the department’s staff handbook had contractual effect. The appeal focused on a short-term absence management policy which, if contractual, restricted managers scope for taking disciplinary action until specific trigger points had exceeded 21 days of short-term absence in any 12 month period.

As part of this case, the court reviewed the test for the incorporation of handbook policies into employment contracts. Viewing the employment documents as a whole, it was stated that the relevant introductory wording of the handbook pointed to “a distinct flavor of contractual incorporation.”

The fact that it might generally be a desirable feature of industrial management to handle absence matters through a non-contractual policy would not prevent a particular provision from being “apt for incorporation”. In contrast, a policy that was stated as forming a “framework within which to approach such matters” would not be contractually binding. In contrast, a policy that was stated as forming a ‘framework within which to approach such matters’ would not be contractually binding.

The decision includes a useful review of authorities on the approach to incorporation which highlight that each case will turn on its particular facts.

It is important that businesses have a suitably drafted Staff Handbook. If your business requires assistance with the preparation of a Staff Handbook; review and updating of its existing Handbook or advice in relation to variation of contractual terms of employment or in relation to policies and procedures in a staff handbook, please contact Farleys Employment & HR team on 0845 287 0939 or send us an email.