Many Heads and Governors review their hr and organisational policies during the Summer term in readiness for the new school year. Have you ever wondered whether the key parts of such policies are enforceable if breached? Consider the following situations:

i) A member of staff uses social media to berate a member of staff or a pupil/student of the school? Would your policy give you the authority to take disciplinary action against the individual?
ii) A member of staff is required to work additional hours/overtime at certain times of the year but the individual refuses and does not appear to have a significant reason? That is a common requirement in service industries but also arises occasionally in schools.
iii) An individual has frequent absences for what does not appear to be sound reasons. If your policy has a clause that triggers the start of an absence management procedure when absence exceeds a certain number of days, would you be able to enforce the taking of formal action under that procedure?

Many Policies contain Vague Clauses

Staff Handbooks are often divided into sections, one or more of which are expressed clearly as being enforceable terms of employment. However, policies and procedures can lead to a false sense of security for Heads as the terms may not be enforceable.

Three ring binder open to the center between yellow and brown tabbed dividers from www.freeimages.co.uk

Policies are written often in a style that provides guidance for managers and/or staff and sometimes amongst that guidance there may be provisions or clauses that you regard as contractual terms. Hence, your belief is that a breach of those will give you the right to take formal action against the member of staff. How certain are you that they will be regarded as terms of employment and therefore any formal consequence for a breach would be legitimate?

One of the problems you have to overcome is to ensure that the provisions are clear as to what the employee must do or not do on the matter concerned. However, the wording of such provisions is often vague and will not necessarily be regarded as apt for incorporation into the contracts of employees.

Dividing Line between Guidance and Enforceable Terms

Disputes about whether the employer has a right to enforce a clause in a policy have been the subject of court cases over the years. Recently, the Court of Appeal decided a case [1] as to whether parts of policies are appropriate to be incorporated into an individual’s contract i.e. that they are legally binding. The case concerned whether the terms of an absence management policy would allow the employer to take action under that policy. The principles apply generally to the question of whether some clauses in a policy are to be treated as contractual obligations.

What Is Likely to Make a Clause in a Policy a Contractual Term?

You can improve the likelihood of key clauses being regarded as part of the contract by taking note of the following points:

• Ensure the clause is very clear in stating what is required of the employee in the situation;
• Linked to the above is the need to ensure the provision is workable and makes business or organisational sense;
• Check that the nature and language of the clauses convey that the provision is intended to be contractual;
• The placement of the clause/provision is important – if it appears alongside other provisions that are contractual then it is likely to be regarded as contractual.

If the clause/provision becomes part of a dispute, a Court will have regard to whether:

• The provision is important to the contractual working relationship between the employer and the employee and its relationship to the contractual arrangements between them;
• The above question equally applies to procedural provisions i.e. how important is the clause/provision to the structure of the procedures and implementing the contractual arrangements – the more important the provision, the more likely it is that the Court will believe that the parties intended it to be contractual.

Express Clauses are Best

That is true and easy to say but the need for new or revised policies often arises after the staff handbook has been produced and so those clauses can not be placed in the contractual terms section of the handbook. Hence, the importance of the points above when writing a policy or revising one.

If practical, it would be preferable to separate out, in the policy, the provisions that are intended to be contractual as this will tend to reinforce the contractual nature. Simply stating that the provisions are contractual will not make sloppy, ill thought out clauses contractual. A Court will only deem a clause to be contractual if it is apt for incorporation.

Take an Objective View When Writing a Policy

Bear the above points in mind when writing policies or guidance documents that contain matters that you would wish to be treated as contractual terms e.g to enforce via a form of management action such as disciplinary action or ill-health action as mooted in the three examples at the start of this article.

Consider the benefit of having an independent person review your policy document. This will provide an objective view of whether clauses are sufficiently robust in their construction and intent so that the clauses are likely to be regarded as having contractual force. The author, Jim Harrington, will review policies with this in mind and other key points to ensure your policy is effective. Please feel free to contact Jim Harrington via this link Send an e-mail to HR Management Dimensions or via the contact details shown in the footer of each blog page.

Sources:
[1] Department for Transport v Sparks & Ors [2016] EWCA Civ 360 (14 April 2016

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