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Changing workplace policies and procedures

Policy review exercises don’t often appear at the top of an HR professional’s list of favourite tasks, but HR policies and procedures are an important…

Policy review exercises don’t often appear at the top of an HR professional’s list of favourite tasks, but HR policies and procedures are an important part of workforce management and need to be maintained and kept up to date.

Making changes to policies is not always easy though.  Particular difficulties arise when there is uncertainty about what may or may not be contractual. It is not uncommon within larger, complex employer organisations, to see additions and amendments to policies and procedures over a number of years, creating a confusing (sometimes even chaotic) framework!

That seems to have been the position in the Department for Transport, which led to a number of its employees bringing proceedings alleging that certain changes to its absence management procedures could not be made by the Department, without the agreement of the other contractual party (the employees themselves or possibly their recognised union, the PCS). 

Even within the court hearings themselves (the High Court and the Court of Appeal) there was uncertainty about what provisions were and were not in operation at the time of the dispute and there were some references to documents which no one was able to trace. The Judgments do not paint a favourable picture!  What was apparent though was that the relevant employment contracts included the following

“Your terms and conditions of employment include those set out in.. The DfT Department Staff Handbook which contains terms and conditions and procedures and guidance applying specifically to you as a Crown employee.”    

The staff handbook then noted:

The Department 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 in to your contract of employment.

So, the way in which the Handbook was positioned did indicate an intention for the provisions to be binding.

The battleground was the absence management section within the Handbook.  The Department decided to introduce a new section which tightened up on the absence management processes including absence “trigger points.”  The position of the employees was that the relevant terms of the original policy and procedure were indeed apt for incorporation and so the employer could not, unilaterally, change these. The High Court (and then Court of Appeal) reviewed the relevant absence management provisions. They noted that the starting point of the contracting parties was that the intention was to create contractual terms where it was “apt” to do so. They also noted the precise nature of the relevant terms, the ‘triggers’ and what would happen and when. The Courts considered that in these circumstances contractual terms were created.

Clearly the Department (at the time it tried to introduce the new absence management section) did not consider that there was a contractual right and the managers in place at that time may have been bound intentionally or unintentionally by the actions or concessions of previous managers and advisers. There appears to have been an absence of coordinated handover and continuity, leading to different and inconsistent approaches and a limited understanding of the ‘full picture’.

 Some lessons

  1. Aim to identify what is or is not contractual. Making certain provisions contractual can be a good thing, creating obligations and providing assurances for employees. However you will seldom want to make management processes contractual.
  2. Ensure a regular review of handbook terms/policies and procedures. A culture of ongoing review and change is good. It maintains relevance and helps to ensure the retention and passing on of knowledge about what policies and procures there are and what they say.
  3. Where there are recognition arrangements with unions then build that ongoing review process (of policies relevant to the recognition arrangements) in to the relationship, so that parties expect it – and regularly. 
  4. Be clear about who takes ownership of the maintenance of polices – meaning either an individual or team (depending on the size of the organisation). Ensure a continuity of knowledge and responsibility.

These steps seem a good idea in principle but are often difficult in practice. The prospect of analysing a set of complex and disparate policies which have come in to being over many years is a daunting one.  But it may need to be moved to the top of an HR agenda particularly within organisations where there is a need for change – and there aren’t many organisations maintaining a status quo just now!

Mark Leach (mark.leach@weightmans.com) is a Partner in the Manchester Employment, Pensions and Immigration Team. If you are planning to make changes to workplace policies and procedures in your organisation, please do not hesitate to get in touch with Mark or speak to your usual Weightmans contact.