Victory for trade unions in DfT sickness absence case

The Department for Transport broke employees’ contracts by failing to reach agreement with Prospect and other recognised unions before changing its absence management procedures, the High Court ruled today (Tuesday).

Prospect, the FDA and PCS brought breach of contract claims against the DfT on behalf of members in the central department and its agencies in November 2014.

The other organisations are the Highways Agency, Driver and Vehicle Licensing Agency, Driving Standards Agency, Maritime and Coastguard Agency, Vehicle Certification Agency and Vehicle and Operator Services Agency.

Staff handbooks for the DfT and its agencies each set out employees’ terms and conditions, with individual agencies able to adopt different policies on matters such as leave, attendance and absence.

However, the central DfT handbook says the contract of employment cannot be changed without agreement from either the employees or recognised unions.

Changes imposed

In late 2011 the DfT wanted to introduce a uniform attendance management policy across the core department and all agencies, but could not reach agreement with the unions.

Despite this, in July 2012, the department imposed a new blanket attendance management procedure.

This introduced new formal and informal ‘trigger points’ for absence management.

Absences of five working days or three occasions in a rolling 12-month period would require mandatory informal action.

Absences of eight working days or four occasions in a rolling 12-month period would require a first written warning and then a final written warning, possibly leading to dismissal.

Prospect’s arguments

Prospect argued that:

• the new procedure had not been agreed with the recognised unions
• the unions disagreed with new trigger points, although they had been prepared to discuss changes
• the right to consent to any change is contractual.

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

Judge’s ruling

The judge, Mr Justice Globe, said the claimants should be granted declarations that the DfT and its agencies had breached their contracts of employment by not seeking consent from the recognised unions before unilaterally imposing the new sickness absence policy.

The new procedures were fundamentally different to the old ones, he added, and would be seriously detrimental to employees. He cited two examples:

• a DSA employee who continued to work despite having been struck on the head by a defective door handle and knocked unconscious for a period.
• a DVLA employee who came into work with his nine-month old child because his wife was ill and he could not get help with childcare.

He ruled that:

• the old procedures and policy would continue to apply
• the new procedures could not vary contracts of employment and were not contractually binding
• by imposing the new terms, the DfTand its agencies had committed an anticipatory breach of contract
• if the new procedures are applied to individuals, the DfT and its agencies will commit a breach of contract.

Old policy must apply

Sohawon said: “This ruling is good news for employees suffering under these new procedures as the old sickness absence policy must now apply.”

The relevant clause in the DfT staff handbook says: “Your contract of employment cannot be changed detrimentally without your agreement.

“Consequently, the Department will not change any of your terms and conditions without your consent or that of a recognised Trade Union…

“Any proposals affecting staff will be the subject of consultation through the Whitley system, with a view to reaching agreement, with the recognised Trade Union.”