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Absence management procedures
[ch 7: pages 217-218]These may be contractual or non-contractual. Non-contractual sickness absence procedures can be changed without employees’ consent. However, changing an established sickness absence procedure without proper consultation is likely to be a breach of the implied contractual duty of mutual trust and confidence (see page 69). Equality issues are also important. Changes to an absence management procedure can result in disability discrimination (see page 140). There may also be indirect sex discrimination, as most carers are female. In addition, a public sector employer, or a private sector employer engaged in providing public functions, should comply with the Public Sector Equality Duty when conducting any review of absence management procedures.
The contractual status of an absence management procedure was explored in the following new case, supported by three unions — the Public and Commercial Services Union, Prospect and the FDA:
The government tried to impose a new attendance management procedure at the Department for Transport, the Driving Standards Agency, the Driving and Vehicle Licensing Agency, the Highways Agency, the Marine and Coastguard Agency and the Vehicle and Operator Services Agency. The new procedure contained much more punitive and standardised trigger points for absence review meetings, with interventions after just five working days’ absence, or three absences in any 12-month period. Falling foul of the new procedure would have disciplinary consequences. The unions tried to negotiate a sensible compromise but the negotiations failed and the government responded by attempting to impose the change unilaterally. The unions brought a high court claim for breach of contract.
The action was successful. The Court ruled that the parts of the procedure that regulated trigger points for intervention were incorporated into individual employment contracts and could not be changed without agreement.
The Court granted a declaration that the terms of employees’ contracts remained unaltered despite the attempt to impose the new procedure. The attempted variation was ineffective, ruled the Court, and any future attempt to impose the new procedure without consent would be a breach of contract.
Sparks and others v Department for Transport [2015] EWCH 181 (QB)
The judge in Sparks refused to follow an earlier ruling by the Court of Appeal — the case of Wandsworth London Borough Council v D’Silva [1998] IRLR 193, which is often relied on by employers to suggest that absence management procedures are never contractual. Whether or not an absence management procedure is contractual will depend on the facts of each case, said the judge. Where breaching a procedure will have disciplinary consequences, such as a warning or dismissal, it is more likely to be contractual (see Chapter 3, page 74).