Any decision to grant a sabbatical should have regard to the usual principles of unlawful discrimination (sex, disability, race/nationality, and, in December 2003, sexual orientation and religion), which means that no decision should be taken which directly or indirectly discriminates against any of the protected classes of employees.
Don’t forget
Other types of leave might legally be available to an employee in appropriate circumstances. The new family-friendly rights introduced in April 2003 have increased the amount of time off allowed for parents. Briefly, the relevant statutory minimum rights are:
• Maternity Leave
Under the new rules, maternity absence can now be up to a year, with 26 weeks of this period being paid.
• Paternity Leave
Two weeks paid leave may be taken by a father within eight weeks of a child’s birth. It must be in blocks of one week. Pay is currently £100 per week or 90 per cent of average weekly earnings.
• Parental Leave
Parents with one year’s service are allowed up to 13 weeks’ unpaid parental leave before the child is aged five.
• Flexible Working
Employees with 26 weeks’ service have a right to request a different working pattern to enable them to care for a child under six (or a disabled child under 18). Agreement to the request results in a temporary or permanent change to terms of employment.
Practical points for employers
Below are some suggestions to consider for a sabbaticals policy or pre-sabbatical agreement:
• Availability: A trigger – a period of qualifying employment is common and seniority may also be appropriate. Will only one sabbatical per employment be offered?
• Application: Who will consider individual applications? A decision-maker should be identified and it would be sensible to set out an appeal process.
• Duration: Is the duration flexible and can it be broken up into several periods?
• Pay: Fully-paid, part-paid, or unpaid? Concerns about working for competitors during time off might mean that it is appropriate to require employees to provide evidence of any earnings obtained during a sabbatical. Will an employee have the benefit of pay increases and would bonuses be awarded?
• Benefits: There is no requirement that holiday or pension accrues during sabbaticals and you should ideally agree on these points beforehand.
• Duties during sabbatical: Will you insist that certain activities are carried out, for example, research or study? Consider whether the employee will be allowed to undertake any other paid work, or a particular type of paid work, such as working for a competitor.
• Continuity of employment: Is it intended that continuity of employment be preserved for statutory and/or contractual purposes?
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
• Expiry of sabbatical: Will the same or similar job be guaranteed? What will happen if the employee resigns during or at the end of the sabbatical? Consider whether the employee should commit to work for a certain period of time on return from the sabbatical.
Victoria Hattam and Kathryn Clapp are employment lawyers at Taylor Wessing
Kathryn Clapp or Victoria Hattam can be contacted at [email protected] or [email protected]
