Department for Transport v Maureen Sparks and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice David Richards,Lord Dyson, The Master of the Rolls,and |
| Judgment Date | 14 April 2016 |
| Neutral Citation | [2016] EWCA Civ 360 |
| Docket Number | Case No: A2/2015/0563 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 April 2016 |
[2016] EWCA Civ 360
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Globe
HQ13X03800
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Dyson, Master of the Rolls
Lord Justice McCombe
and
Lord Justice David Richards
Case No: A2/2015/0563
Adam Tolley QC (instructed by the Government Legal Department) for the Appellant
Mathew Purchase (instructed by Slater & Gordon) for the Respondents
Hearing date: 16 February 2016
(A) Introduction
This is an appeal by the Department for Transport from the judgment and order of 3 February 2015 of Globe J by which he made declarations that certain terms, identified in a schedule to his order, were terms of the contracts of employment between the Department and the respondents. In particular, the judge decided that the following provision contained in the Department's Staff Handbook was a term of the contract between the Department and the First Respondent:
"Where in any 12 month period you have taken a number of short-term absences as sick leave which together exceed 21 working days, your line manager will discuss your attendance record with you. Only if you have exceeded these "trigger points" and, consequently, your line manager acknowledges that there is a problem with your attendance will he or she take the matter forward in accordance the procedures [ sic] set out in Annex A – Maintaining satisfactory standards of attendance."
The judge made broadly similar declarations in respect of the contracts between the Department and the six other respondents where the precise terms of the relevant provision were somewhat different, but not materially different for present purposes. The issue between the parties was and is whether the provisions in question, in each case to be found in a version or versions of the Department's staff handbook ("the Handbook"), were legally enforceable contractual terms or were mere notes of guidance and good practice of no legal force.
As a result of his finding, the judge declared that a new policy of attendance management, purportedly introduced by the Department in July 2012, was not effective to vary the contractual terms of the employment contracts and was not contractually binding upon the respondents.
The Department appeals against the judge's decision with permission granted by (Stephen) Richards LJ by order of 23 March 2015. In the event that the court upholds the judge's decision that the provisions in issue were terms of the respondents' contracts, there is no appeal against the judge's further finding that the Department was not entitled unilaterally to vary the contractual terms as to attendance management.
(B) The Employment Documents
We were not shown the statutory statement of employment terms in respect of any of the respondents. It seems to be common ground, however, that nothing in such statements affected the matters that we have to decide. The question in issue turns upon the status of the particular paragraphs in the Handbook, as they applied to the seven individual "agencies" in which the seven respondents were employed. The seven agencies concerned were Department for Transport (Centre), Driving Standards Agency, Driver and Vehicle Licensing Agency, Highways Agency, Maritime and Coastguard Agency, Vehicle Certification Agency, Vehicle and Operator Services Agency. The seven respondents were each employed in one of these agencies.
The particular provision in issue in the proceedings appeared in varying forms in the Handbook as it related to the different agencies. However, it was agreed that the same issue as to the incorporation of the provision into the individual contracts could be decided by reference to one example. For practical purposes of argument the provision appearing in the first respondent's employment documents was used. It is agreed that the decision as to that one example would resolve the question between the Department and all seven respondents.
The provision that was placed before us for the purposes of the appeal was in a slightly different form from that which appears in the schedule to the judge's order, which I have already quoted above. The version that we saw was this:
" Cumulative short-term absences
10.1.18 Where in any 12 month period you have taken a number of short term absences as sick leave which together exceed 21 working days, your line manager will discuss your attendance record with you. Only if you have exceeded these 'trigger points' and, consequently, your line manager perceives a problem with your attendance will he or she take the matter forward in accordance the procedures set out in Annex A, Maintaining satisfactory standards of attendance."
At the beginning of the hearing of the appeal there was considerable difficulty in identifying the precise provisions of the Handbook that were in operation at the relevant times, in particular because it proved impossible for anyone to find the "Annex A" referred to in the quotation immediately above. The problem arose because the Handbook has, for some time, only existed in electronic form. Various provisions have been amended, deleted or inserted without maintaining the possibility of retrieving deleted material. The relevant Annex A has now been lost for all time. Clearly, this is far from satisfactory on a continuing basis for employee and employer alike and was not satisfactory for the purposes of our task in construing the relevant provisions at issue in the proceedings. In paragraph 8 of his judgment, the judge resolved this dilemma as follows:
"At some unspecified date prior to July 2012 "Chapter A10 Annex A, Maintaining satisfactory standards of attendance" was replaced by "Chapter A10 Annex, Disciplinary Procedures", which contained a disciplinary procedure dealing with conduct, performance and attendance issues. Pursuant to paragraph 10.1.18, the procedure in relation to cumulative short absences only applied where there had been " trigger points" of over 21 working days absences as sick leave in any 12 month period. If the procedure applied, it provided first of all for an "informal stage" involving a quiet word and a copy of any notes taken during the course of the discussion being handed to the employee. If there were any continuing attendance issues, there was provision for "formal stages". Stage one could lead to a formal written warning. Stage two could lead to a final written warning. Stage three could lead to dismissal."
Sadly, it was also impossible to identify the earlier document to which the judge was referring, because the "Disciplinary Procedures" section before us (p.18 of the appeal bundle) stated that it was "A3 annex C: Disciplinary procedures", not "Chapter A10 Annex A, Disciplinary Procedures" as referred to in paragraph 8 of the judgment. In the end, however, having heard argument from counsel, we decided that we would proceed on the basis that our document, at pp.18–23 of the appeal bundle bore sufficiently the characteristics referred to by the judge as to enable us to treat them as one and the same Annex as the judge had before him and which he decided to treat as the "Annex A" document. Thus, that document was treated as the "Annex A" referred to in the important clause 10.1.18.
The employment documents introduced the Handbook by way of the following provisions:
" 1.1 Contract of employment
1.1.1 You are a Crown employee working within the Department for Transport (DfT). Your terms and conditions of employment include those set out in
(1) …………
(2) the DfT Department Staff Handbook which contains terms and conditions and procedures and guidance applying specifically to you as a Crown employee (there are variations between different bargaining units – see Annex A …)
1.2 The Department Handbook
1.2.1 The Departmental Staff Handbook, as applying to you, sets out many of your terms and conditions. It is the intention of the recognised trade unions … and of the Crown that all of the provisions of the Departmental Staff Handbook which apply to you and are apt for incorporation should be incorporated into your contract of employment.
1.2.2 The Departmental Staff Handbook is in two parts:
• Part A contains terms and conditions. Without prejudice to the generality of paragraph 1.2.1 above, all of Part A and all annexes of Part A which apply to you and which are apt for incorporation, will be incorporated into your contract of employment; and
• Part B contains procedures and guidance relevant to your employment relationship with the Crown. Those procedures and guidance can be relevant to the operation of your contractual terms and conditions set out in Part A, but in the event of inconsistency between Part A and Part B it is Part A which prevails. …"
Those provisions lead into the relevant parts of the Handbook itself as follows:
" Chapter A10: Ill Health
This chapter
• sets out your terms and conditions of employment relating to sick leave;
• sets out your terms and conditions of employment relating to the management of poor attendance …
A10.1 Sick Leave
10.1.1 Paragraphs 10.1.2 to 10.1.23 inclusive set out your terms and conditions of employment relating to sick leave. In addition:
a. Annex A: Maintaining satisfactory standards of attendance … sets out the procedures that can be invoked whenever your line managers believe that your attendance is unsatisfactory.
b.………
c. Chapter A10.3 … sets out guidance and procedures for helping you and your line managers to address sickness absence.
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