Mind the gap

Gap years and career breaks are no longer the preserve of backpacking students and job-hopping 20-somethings, with everyone from burnt-out high-fliers to grandparents opting for one.

Some organisations now allow staff breaks of anything up to five years. From the police – the Metropolitan Police has 226 officers on sabbatical – to Asda, which is at the forefront of innovative work-life balance policies, offering ‘Benidorm leave’ for the over-50s (up to three months, unpaid).

There is every indication that, faced with the prospect of working for the best part of 50 years, gaps like these could become a necessity rather than a break from the norm for the UK workforce.

“Some individuals may take a career break at 30 or 40 and then again at 50 while they are still active enough to enjoy it and then work until 70 or 75,” says Tim Osborn-Jones, client director for tailored qualifications at the HR management and organisational behaviour faculty of Henley Management College. “Or if pensions aren’t sufficient, some people may find that what they thought was retirement becomes a career break.”

Career breaks can be seen as one of a package of flexible working options that organisations are having to provide to attract and retain staff. The war for talent may not be raging to the same degree as it was five years ago. But set against a backdrop of work-life balance and general shifts in employment patterns and thinking (ie, there is no job for life any more), companies are aware they need to offer a range of incentives and benefits to remain competitive and bolster the employer brand.

“People request career breaks for various reasons – from travelling, to learning, to looking after the grandchildren – and employers recognise that if they don’t give people the opportunity to take a break, they run the risk of losing them,” says Alexandra Jones, researcher at the Work Foundation.

“If they’re run effectively, they can benefit both sides and the employee is more likely to be committed to the organisation,” Jones says.

Ensuring that both sides benefit is where HR comes in. Although no specific legislation relating to career breaks exists, a raft of legal issues, along with practical and moral considerations, are associated with taking one, including:



  • Does the career break count as continuous service?
  • What is the effect on benefits?
  • What happens to that individual when they come back?

It lies with HR to ensure that organisations have the right policies and procedures to enforce these issues and that individuals fully understand them.

“The law doesn’t deal with career breaks like it does maternity leave so it’s a case of the DIY approach at the moment,” says Simon Jeffreys, a partner who specialises in employment law at CMS Cameron McKenna. “Employers must talk through implications of the career breaks carefully with the individual so they know what to expect if and when they come back. If they don’t, they risk a legal problem.”

Marks &Spencer found itself at the centre of such a legal wrangle two years ago and  the resulting Curr v Marks & Spencer case proved to be a wake-up call for many employers, despite the fact the retailer won the tribunal. Cheryl Curr believed her service before and during the career break she took would count towards her redundancy. Marks & Spencer believed it needed to pay only for the years Curr had worked after her return from the break (Curr applied for a newly introduced career break scheme while on maternity leave and while she accepted that she had to resign from her existing employment contract, she did not appreciate the possible effect).

“You can count on one hand the number of cases relating to career breaks, which is why Curr v Marks & Spencer is so important,” says Patricia Leighton, Jean-Monnet professor of European Law at the University of Glamorgan. “It was a defining moment and tested the nature of the career break for the first time.”

The Employment Appeals Tribunal (EAT) looked at matters pragmatically and ‘in the round’ to find that there was no intended effect on Curr’s continuity of employment as a result of the career break. It decided the case in her favour. However, the Court of Appeal rigorously analysed the relevant provisions of the Employment Rights Act 1996 to find that employment had been broken, and restored the decision of the original tribunal.

Although the outcome of the tribunal remained the same after an appeal, Leighton believes the case provided a much-needed reality check for organisations. “It goes to show that the cynics and sceptics have got grounds for being cautious about various forms of flexible working,” she says. “The career break scheme had been promulgated, but at the end of it, what had Curr gained? Very little. Just the right to come back to work.”

One of the ironies of the Marks & Spencer case, says Leighton, is that Curr worked on a casual basis for the retailer during her career break.

It is fair to say that some of the arguments surrounding career breaks resonate with some earlier arguments associated with maternity leave.

“Nobody was very clear about the legal status of that and that’s taken 20 years to hammer down,” Leighton says, noting that it was the European Court of Justice that has been instrumental in making the position of women on maternity leave “pretty water tight”.

“But there is no European legislation on career breaks and what it comes down to is basic contract law,” she says. “It might be dressed up as flexible working, work-life balance and family-friendly policies but, at the end of the day, we are dealing with basic employment contract law.”

Typically, a career break policy will ask the person to resign from their current position, which also means their benefits are frozen at that time, but it will allow for them to return. In what capacity that person is re-employed is a decision for the company, but it must be spelled out. “Both sides need to get it crystal clear,” Jeffreys says. “I don’t mean they need to specify exactly what job and when, but the generic obligation of the employer and employee need to be clearly agreed and written down.”

Benchmarks

With career breaks of less than six to 12 months, an employee may not be expected to resign, although there is no real benchmark for this, Jeffreys says. “It is more a question of what they are going to do,” he says. “But for short breaks, such as sabbaticals, there would not be a resignation. It would be treated as extended paid or unpaid holiday as the case may be.”

The BBC has operated a career break scheme since the early 1990s and several hundred staff have taken up the opportunity, says Allan Jones from the company’s HR department. The scheme was initially based on caring responsibilities and was expanded to cater for further education breaks and, more recently, travel. “It is located in the flexible working and work-life balance area of employment,” Jones says. “And we try to interpret those headings as widely as operationally practicable.”

The BBC splits career breaks into three categories, which are designed to give greater flexibility to both parties over the length of the break. “The longer the break, the more difficult it is for the manager to guarantee the same job,” Jones says. “So if staff want a longer break they may have to agree a different kind of return.”

The most popular length of break taken is a year, Jones says, adding: “This is partly because both parties do not want the member of staff to find they have been left behind.

“One year also has a resonance with maternity leave provisions, which means that our managers and staff are now used to facilitating returns after that time.”

Jones knows, though, that it is not enough just to have a good career break policy, but that  steps must be taken to ensure staff fully understand it. BBC managers talk through the terms of the career break with the individual and follow it up with a letter confirming the terms. “This includes the basis on which they will be returning to work to ensure they are absolutely clear about their position,” Jones says.

As Leighton points out, it is impossible to guarantee or expect an employee to understand all the subtleties of employment law, and employers must put effort into clearly communicating them.

“There is a lot of imprecise thinking surrounding contracts of employment and they don’t get the attention they deserve,” she says. “You need to get people to say that they fully understand that they have to terminate their contract and that they understand what that means. The risk to the individual is when they don’t understand when one contract has ended. If they work for that employer in a different capacity they have a different contract and cannot merge the two together.”

Getting the returns policy right is one of the biggest challenges HR faces and while legal demands override all others, it is vital to get it right from a moral and business perspective. And while it is all very well to instigate a raft of family-friendly policies that help to promote work-life balance, the increasing need for HR to demonstrate its worth to the bottom line means that the business standpoint cannot be overlooked.

“Employees must feel that they can freely talk about career breaks with their bosses but, as with many things, you have to be able to build a business case for it,” Alexandra Jones says. “And the real challenge is when people come back – what effect will it have on their careers? It doesn’t make business sense to sideline your best people.”

Editor’s note: our thanks to David Preston of Hardwicke Civil who represented Cheryl Curr at all three tribunals. Marks & Spencer was invited to comment, but was unable to at the time of going to press.

HR checklist



  • Talk through the implications of the career break face-to-face and follow it up with a letter. Have a copy of the career break policy document to hand during the discussion and make sure the employee takes it with them
  • Spell out what the position will be on their return. This will be detailed in the policy document, but it can’t be emphasised enough
  • Encourage the employee to stay in touch – occasional e-mails or phone calls. If you have a newsletter, arrange for it to be sent to them
  • When drawing up your career breaks policy, consult with other areas of the company such as finance and benefits
  • And finally, talk to HR colleagues about their policies and their experiences

Taking a year out

Lucy Land is an assistant producer at the BBC and took a one-year career break between September 2002 and 2003 to travel.

“HR explained the implications to me –  that I had to resign, but would pick up my BBC staff job again when I got back. I had to break off my pension for a year, and then rejoin and amalgamate my pension payments.

“I left an attachment at Children’s BBC where I was an assistant producer directing and making sport films. I returned to my ‘mother ship’ job at Sport24 where I am an assistant producer producing sports news.

“The career break was great. I think it’s fantastic that the BBC offers it. I could especially enjoy my time away as I knew I had a job and salary to come back to. I learnt all sorts of new skills and sports – from Thai cooking to animal farming. I also came in contact with fascinating new cultures, which fuelled some story ideas I want to get commissioned by the BBC. I’ve learnt a lot about myself and what I need to be happy, and I now appreciate my English lifestyle too.

“I came back to work refreshed and raring to go, bursting with ideas.”

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