Legal blow for Department for Transport over staff sick day changes

Unions welcomed Court of Appeal decision backing 2015 ruling that amendments to DfT's staff handbook were unlawful

By Jim Dunton

21 Apr 2016

The Department for Transport has lost a legal bid to enforce changes to its staff handbook that reduce the amount of sick days employees can take before disciplinary proceedings are triggered.

In 2012 the department introduced a “trigger point” of 21 days of short-term sick leave absence in any 12-month period, after which line managers could begin procedures over “problem” attendance.

However the rule change was suspended in 2015 after the seven staff – backed by civil service unions Prospect, PCS and the FDA – won a High Court challenge that found the DfT’s move amounted to an illegal contract alteration.

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

At a hearing in February, DfT sought to overturn the High Court’s decision, arguing that the handbook alterations amounted to guidance and were “inherently unsuitable for incorporation into contracts”. 

But in a judgement handed down this month, the Court of Appeal disagreed, and dismissed the department’s challenge.

Master of the Rolls Lord Dyson said it was difficult to disagree with High Court judge Mr Justice Globe’s 2015 assessment that the changes bore a “distinct flavour of contractural incorporation”. 

And he said other DfT staff handbook revisions – and the department's inability to preserve a key annex document to the original handbooks – were an “illustration of internal confusion at the department”.

“This ruling is good news for employees suffering under these new procedures, as the old sickness absence policy must now apply" – Prospect legal officer Linda Sohawon

Prospect legal officer Linda Sohawon told CSW that the new staff absence trigger points had been “much stricter” and could have resulted in staff being given written warnings of potential dismissal after eight working days of absence.

“They would stigmatise individuals who may have chronic complaints or unrelated illnesses and create anxiety because of the threat of disciplinary action," she said.

“This ruling is good news for employees suffering under these new procedures, as the old sickness absence policy must now apply."

However Sohawon queried whether the appeal decision would have wider ramifications, noting that the DfT terms were unusual in expressly stating that the sickness procedures were contractual.

Martin Furlong, the FDA’s national officer for the DfT, meanwhile said the decision protected member’s rights. 

“This is about fairness and consistency across the department,” he told CSW.

“We continue to be ready to discuss the underlying issues with the department in due course.”

Welcoming the decision, a statement from PCS said the 2012 contract changes had been “draconian”. A spokesperson added: "We're very happy that the judge confirmed the DfT could not ride roughshod over longstanding procedures and agreements. It is sadly indicative of a wider trend across Whitehall to erode the kind of working conditions that once made the civil service an exemplar employer."

A DfT spokesperson said: “The Department for Transport takes its responsibilities as an employer very seriously and always aims to take a best practice approach to supporting and managing staff. The Department is already compliant with the court judgement so the appeal outcome will have no additional effect.”
Staff involved in the case worked at the Department for Transport, the Driving Standards Agency, the Driver and Vehicle Licensing Agency, the Highways Agency, the Maritime and Coastguard Agency, the Vehicle Certification Agency, and the Vehicle and Operator Services Agency. 

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