In Sparks and others v Department for Transport, the following trigger point absence provision was set out in Part A, Chapter 10, of the Department’s Staff Handbook:

“Where in any 12-month period you have taken a number of short-term absences as sick leave which together exceed 21 working days, your line manager will discuss your attendance record with you. Only if you have exceeded these “trigger points” and, consequently, your line manager acknowledges that there is a problem with your attendance will he or she take the matter forward in accordance the procedures set out in Annex A – Maintaining satisfactory standards of attendance.”

The contract introduced the handbook into the employment relationship. The relevant clauses are:

1.2.1 The Departmental Staff Handbook, as applying to you, sets out many of your terms and conditions. It is the intention of the recognised trade unions … and of the Crown that all of the provisions of the Departmental Staff Handbook which apply to you and are apt for incorporation should be incorporated into your contract of employment.

1.2.2: Without prejudice to the ‘generality’ of paragraph 1.2.1 above, all of Part A, which apply to you and which are apt for incorporation, will be incorporated into your contract of employment.

The High Court (HC) decided that the trigger point absence provision in the Handbook was a term of the contract. As a result, the HC declared that a new attendance management policy, introduced in July 2012, was not effective to vary the contractual terms of the employment contract and was not contractually binding.

The Court of Appeal rejected the appeal holding that the HC had been right to rule that the provision was contractual. Whether it was appropriate to incorporate the provision into the contract of employment meant looking at the wording used in all the relevant documents, i.e. the Handbook and the contract combined.  While the provision was couched in the language of procedural guidance, the words introducing the Handbook into the employer/employee relationship in clauses 1.2.1 and 1.2.2 point to a distinct flavour of contractual incorporation. Those introductory words and the terms of the provision itself indicate that it is designed to confer a right on employees over and above the good practice guidance in the policy section of the Handbook.

This case highlights that great care needs to be taken when identifying those provisions in the employment relationship which are to be regarded as contractual and those which are purely policy, procedure or guidance and therefore not intended to form part of the contract. The wording is critical, particularly where one document is cross-referenced to another, and must be so precise that there can be no room for ambiguity.

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