Can an employer rely on a term in a staff handbook which is expressly incorporated into the contract, even if the employee has never been provided with the handbook?

Is an employer entitled to rely on the provisions of a staff handbook, which is expressly incorporated into the contract of employment, in a case where the employer did not provide a copy of the staff handbook to the employee at the time of the employee signing the contract or throughout the employee's employment?

While provisions of a staff handbook which were expressly stated to be contractual in the employment contract, would arguably be contractually enforceable, it is difficult to see how an employer could rely on a term that the employee is unaware of. Usually, the terms of a staff handbook (or the policies contained within it) are non-contractual so it would need to be very clear that the terms were contractual. Employers are required by section 1 of ERA 1996 to provide employees with a written statement of the main terms of their employment.

If the term that the employer seeks to rely on is not contained in the employment contract provided to the employee then it would need to show that the employee was aware of the term either orally or by a course of conduct. For instance, was the employee orally informed of the terms at an induction for instance, or told to access the handbook on the company intranet. This may still not be enough, but it is worth considering.

Lastly, you may also want to consider the Contra proferentem rule, which states; where there is doubt about the meaning of the contract, the words will be construed against the person who put them forward, which is set out in Case law on interpretation of the written contract.

This is a fact dependent situation and the employer will need to consider the facts and circumstances in this case.