Transport department’s change to sickness absence procedure unlawful, says Court of Appeal

Unions are celebrating a victory as the Court of Appeal has confirmed that the Department for Transport cannot change its sickness absence rules without agreement.

In 2012 DfT imposed harsh changes to the sickness absence procedures, including reducing the “trigger points” for taking action when workers were off sick. For example, a formal written warning would be given for absences of eight working days and this would start the dismissal procedure.

Prospect, the FDA and PCS brought breach of contract claims against the DfT on behalf of members in the central department and its agencies.

 “The new trigger points were much stricter,” said Prospect legal officer Linda Sohawon. “They would stigmatise individuals who may have chronic complaints or unrelated illnesses and create anxiety because of the threat of disciplinary action.”

The unions argued that the DfT handbook identified the sickness arrangements as being contractual and the terms could not be changed without agreement from either the employees or recognised unions.

The High Court in 2015 ruled the proposed change was unlawful and the old provisions must continue to apply. DfT appealed to the Court of Appeal, which heard the case on 16 February. The court dismissed the appeal and upheld the earlier ruling.

The court agreed that the original sickness management terms were contractual and could not be changed without agreement.

Linda Sohawon said: “This ruling is good news for employees suffering under these new procedures, as the old sickness absence policy must now apply.” However, it should be noted that the DfT terms were unusual in expressly stating that the sickness procedures were contractual.

The judgment was released today (15 April). A fuller briefing from Prospect on the implications of the case will be available shortly.