Absence management procedures 



Contractual or non-contractual?


Absence management procedures may be contractual or non-contractual. If a procedure is non-contractual, then changes to the procedure are unlikely to breach the employment contract. Even so, making important changes without proper consultation may breach the implied contractual duty of trust and confidence (see page 87 of Chapter 3). Where a union is recognised, consultation should be with the union. 



In Sparks and others v Department for Transport [2016] EWCA Civ 366, three civil service unions, Prospect, the PCS and the FDA, won an important victory when the Court of Appeal confirmed that the trigger points in an absence management procedure were contractual and could only be changed by agreement.



The Sparks case was an important victory for the civil service unions. The new trigger points were much stricter and would have stigmatised employees with chronic complaints and the threat of disciplinary action would have caused a great deal of anxiety. But it is important to remember that the written terms of the sickness absence procedures in the case were unusually clear as to their contractual status. Each case always depends on its own facts (see Chapter 3 for more information on establishing whether terms are contractual).