Do workplace policies form part of employment contracts? A working guide and advice for employers

It is now common practice for employers to utilise policies in their workplaces to stipulate expected standards of employee behaviour and performance. An important consideration, which directly affects the issue of legal liability for employers and employees, is whether or not the terms of a workplace policy form part of the employment contract. The common law provides little guidance as to how to make this determination, which invites uncertainty into the field of employment law and attracts the attendant risk of legal disputes arising. Moreover, there is scant literature on point. This article examines the relevant case law and reduces the pertinent principles into a useable guide for employers to assist them in establishing whether the terms of a particular policy are likely to be judicially regarded as contractual in nature. The article also considers common contingencies and the potential impact of other legal doctrines and principles before concluding with some general advice for employers on how to avoid the accidental assumption of legal liability.