Sickness absence procedures

These may be contractual or non-contractual. Non-contractual sickness absence procedures can be changed without employees’ consent. For example, in Wandsworth London Borough Council v D’Silva [1998] IRLR 193, when a council cut the number of trigger sickness absences under its procedure, the Court of Appeal ruled that the procedure was supposed to operate flexibly and informally and to be a statement of good practice. It did not create individual contract rights and could be changed without agreement.

For guidance as to the factors likely to be taken into account to decide whether a procedure is contractual or non-contractual, see the LRD booklet Contracts of employment.

Even if a sickness absence procedure is non-contractual, failure to consult on proposed changes can help to support an argument that a resulting dismissal is unfair.