The Court of Appeal has recently had to consider whether or not provisions in the Department for Transport’s staff handbook were in fact contractual.

Background

The terms in question related to the DFT’s absence management policy, and the number of absences that would trigger sanctions under it.

Most employers will specifically state that their staff handbooks are not contractual. This is to give them leeway to be able to change them from time to time as circumstances dictate.

Previous case law has dictated the way Courts should approach whether terms in staff handbooks should become contractual. Firstly, those terms will only become contractual if the contract of employment itself states that they should. Furthermore, the particular terms should be “apt for incorporation”. Provisions that have previously been held to be “apt for incorporation” include those relating to redundancy and remuneration.

In this case, the policy relating to the trigger point was expressly stated to be contractual. The question was therefore whether or not it was apt for incorporation. This was obviously hotly debated, all the way up to the Court of Appeal.

The Appeal Court decided that the terms were indeed apt for incorporation, because they were obviously designed to confer a right on employees over and above good practice.

This meant that the policy in question could not be altered except with the agreement of the members of staff, because it was contractual.

Implications

Employers are generally advised to have an obviously and completely non-contractual staff handbook.