“…….you will notice a change to the way the staff handbook looks as we’ll be removing the contractual highlighting from Part A. In response to feedback that the highlighting can be confusing and makes the handbook less user-friendly, we’ve decided to remove it. This means that the whole of Part A of the handbook will be contractual, not just the highlighted parts.”
“The removal of the contractual highlighting took effect from13 August 2012 …… The HR rationale for its removal was due to the confusion it was creating in relation to the text in Part A of the staff handbook. Part A was intended to have contractual effect. There was therefore lack of clarity on the effect of the non-highlighted text contained in Part A. The bulletin article which informed staff about the removal of the contractual highlighting from Part A of the staff handbook was contained in the bulletin dated25 July 2012 ……. The Department’s position is that all of Part A of the staff handbook is apt for incorporation.”
“31. On the question of construction, as Mr Brennan acknowledged, where a contract of employment expressly incorporates an instrument such as a collective agreement or staff handbook, it does not necessarily follow that all the provisions in that instrument or document are apt to be terms of the contract. For example, some provisions, read in their context, may be declarations of an aspiration or policy falling short of a contractual undertaking see e.g. Alexander and others v Standard Telephones and Cables Limited (No.2)[1991] IRLR 286 per Hobhouse J, as he then was, at paragraph 31; and Kaur v MG Rover Group Limited[2005] IRLR 40 CA per Keene LJ with whom Brooke and Jonathan Parker LJJ agreed……It is necessary to consider in their respective contexts the incorporating words and the provision in question incorporated by them.”
“31. …… The relevant contract is that between the individual employee and his employer; it is the contractual intention of those two parties which must be ascertained. In so far as that intention is to be found in a written document, that document must be construed on ordinary contractual principles. In so far as there is no such document or that document is not complete or conclusive, their contractual intention has to be ascertained by inference from the other available material including collective agreements. The fact that another document is not contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract. Where it is not a case of express incorporation, but a matter of inferring the contractual intent, the character of the document and the relevant part of it and whether it is apt to form part of the individual contract is crucial to the decision whether or not the inference should be drawn.”
“10. ………One must therefore look at the content and the character of the relevant parts of the collective agreement to determine whether they are apt to be a term of the individual contract of employment.”
“24. In relation to this code the industrial tribunal spoke good sense when they stated a general approach to codes of this sort in these terms: ‘It is, we believe, from our industrial experience eminently desirable that an employer’s approach to dealing with ill-health absence should not run the risk of being viewed by management and staff in the same manner as misconduct disciplinary procedures. It is very much an area which we as a tribunal would wish to see covered by negotiated codes and policy statements and staff agreements with that kind of spirit and effect than being treated as a part of the contractually binding obligations of the employer and employee. As a matter of good industrial practice, we believe that ill-health absence should be treated with much more flexibility, compassion and common sense than many other aspects of the employment relationship. There is a case for saying that a young man who takes one day off allegedly for a cold but is seen shopping in the town centre should be treated much more severely than, say, someone with long-term asthma difficulties and a number of days’ absence.’”
“22. ………..whether, on the proper interpretation of the code, the relevant paragraphs are to be construed as conferring rights on the employee or as setting out no more than good practice which the council’s officers were intended to follow.”
“25. …..Those views of Hobhouse J do provide a valuable guide as to the solution of this issue on appeal. They can however be supplemented in this context by asking a question………That question is whether the code should properly be regarded as conferring a right on the employee not to have the short or long-term procedures contained in the code invoked without the triggering event having happened.”
“29. ……..If the language of the provisions to be amended are examined in the context of the scheme as a whole, they are not an appropriate foundation upon which to base contractual rights. If what was being triggered was a disciplinary or an appeal procedure, the position would probably be different. Both in the case of the short-term and long-term absentees, the code is doing no more than providing guidance for both the supervisors and the employees as to what is expected to happen. The code does not set out what is contractually required to happen. The whole process in the initial stages is sensibly designed to be flexible and informal in a way which is inconsistent with contractual rights being created. At later stages of the process proposed the employee’s arguments would have much more force.”
“35. Equally, if not more important, is the wording of a provision under question in an incorporated document containing contractual terms. If put in clear terms of entitlement, it may have a life of its own, not to be snubbed out by context immediate or distant in the document of which it forms part. Where the wording of the provision, read on its own, is clearly of a contractual nature and not contradicted by any other provision in the documentary material constituting the contract, context is not all. ”
“1.3.1 Your contract of employment cannot be changed detrimentally without your agreement. Consequently, the Department will not change any of your terms and conditions of contract without your consent or that of a recognised Trade Union (see paragraph 1.3.2). Any proposals affecting staff will be the subject of consultation through the Whitley system, with a view to reaching agreement, with the recognised Trade Unions.”
“44. It is a strong thing to imply a term into a contract of employment when that term allows the unilateral variation of the contract. That is all the more so when there are established means for reaching consensual variations to the contract through the Whitley Council procedures……….. 46. ……..Had the parties intended a provision allowing the unilateral variation of the rate of allowances, in my judgment the contractual terms would have had to provide unambiguously for that.”