Absence management procedures

Absence management procedures can be contractual or non-contractual. Even if a procedure is non-contractual, making significant changes without proper warning or consultation may breach the implied contractual duty of trust and confidence. Where a union is recognised, consultation should be with the union. If there is a safety committee appointed under the Safety Representatives and Safety Committee Regulations 1977, that committee should also be consulted.

Whether or not a sickness absence procedure is contractual depends on the facts of each case and the contract terms. For a good example of a successful case, see Sparks and Others v Department of Transport [2016] EWCA Civ 366, a case brought by Prospect, the PCS and the FDA. See Chapter 3 for more information on assessing when terms are likely to have contractual status.