PCS and other civil service unions have successfully challenged plans to unilaterally impose a new 'seriously detrimental' sickness absence policy at the Department for Transport.
The High Court ruled on Tuesday (3 February) that the DfT broke employees’ contracts by failing to reach agreement with recognised unions PCS, Prospect and the FDA before changing its absence management procedures.
Our argument for these workers was that DfT staff terms and conditions and conditions of service are contractual and are described as such in their staff handbook. On that basis new sickness absence arrangements could not be imposed and needed to be subject to a collective agreement, which did not exist, or individual agreement to vary terms, which was not sought.
The 3 unions 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.
Our argument for these workers was that DfT staff terms and conditions and conditions of service are contractual and are described as such in their staff handbook. On that basis new sickness absence arrangements could not be imposed and needed to be subject to a collective agreement, which did not exist, or individual agreement to vary terms, which was not sought.
The 3 unions 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, and walked away from talks 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:
This introduced new formal and informal ‘trigger points’ for absence management:
- Absences of 5 working days or three occasions in a rolling 12-month period would require mandatory informal action.
- Absences of 8 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.
PCS general secretary Mark Serwotka welcomed the ruling: "This case proves the importance of taking legal action to defend and preserve members' hard-fought terms and conditions in the face of management's illegal attempts to undermine them. The already over-stretched staff who bare the brunt of these vindictive policies are often those who suffer chronic illnesses and suffer anxiety because of the threat of disciplinary action."
PCS DfT president Paul Williams said: "This is in an overwhelming judgement in our favour, and a vindication of members' determination on this issue. We now urge the employer to get back in to proper talks with the unions on a non-detrimental sickness policy that covers all DfT agencies."
PCS DfT president Paul Williams said: "This is in an overwhelming judgement in our favour, and a vindication of members' determination on this issue. We now urge the employer to get back in to proper talks with the unions on a non-detrimental sickness policy that covers all DfT agencies."
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.
He said that new procedures were fundamentally different to the old ones and would be seriously detrimental to employees.
He cited two examples:
He said that new procedures were fundamentally different to the old ones 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.
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