Do we have a legal obligation to honour a request for a career break or sabbatical?
Career breaks are not officially recognised by law. However, many employers are willing to consider the possibility as an alternative to losing a valuable employee permanently. To formalise requests for career breaks, many employers have put career break policies in place. Currently, these policies are the only way to regulate career breaks in a legal environment that does not formally recognise the concept.
Nevertheless, no matter how the policy is worded, the career break is usually a resignation on the hope of a later re-engagement.
This means the employer has no certainty as to whether the employee will return to the organisation at the end of their break. Furthermore, the employee is unlikely to have any certainty as to whether or not they will be re-engaged.
If we want to offer a career break option, what issues should we be aware of with respect to former employees returning to their previous jobs?
Problems may arise when an individual has sought to establish that continuity of employment was not broken by virtue of the career break.
Some employers will allow re-engaged employees to count the period of employment prior to the career break for the purposes of accruing contractual rights (for example, entitlements under contractual redundancy, sick pay and holiday schemes may increase with length of service).
Despite any agreement to the contrary, an employee who returns from a career break is likely to have lost any statutory rights that depend on accrued length of service (such as the right to claim unfair dismissal after a year’s service).
Most career break policies are also carefully worded to ensure there is no right to return to the same job or on the same terms and conditions at the end of the career break.
Are there legal implications if an employee on a career break continues to do work for our organisation?
Periodic work carried out during the career break may enable an employee to demonstrate that their continuity of employment was not broken by the break. However, an individual may free to pursue alternative employment during the period (subject to any restrictive covenants).
Is the legal position on career breaks similar to that of parental leave?
While the law creates ever more regulation in respect of periods of parental leave, an individual who takes leave to fulfil a different personal aspiration will find themselves in a completely unregulated area of absence. A career break is effectively a period of unemployment.
So could we be putting our employees at a disadvantage and storing up future trouble by offering a career break option?
The career break option can be part of a flexible working package. It requires careful planning and good communication, so that each side fully understands the implications of any commitments made.
Most employees who wish to take an extended period of leave would rather not view the job they left behind as abandoned forever. Rather, they may wish to pick up their careers where they left off following a fulfilling break.
Could the law be tightened up in this area to deliver greater clarity?
It would be helpful if legislation could formally recognise career breaks for limited purposes. It could clarify the extent of an employer’s obligation (if any) to re-engage an individual who has come to the end of their career break.
Although a career break policy may state that the individual will be re-engaged if their job still exists, the business may have moved on, or the individual may no longer be the most suitable candidate for the job.
If employers are keen to entice good staff to return from a career break, it would be helpful if parties could agree to treat the separate periods of employment as continuous for statutory purposes. It may also be helpful for individuals to have an obligation to inform employers of whether they intend to return to the organisation.
Career breaks are likely to become a more common request if, in practice, retirement ages are raised for economic or regulatory reasons. While career break policies can plug a gap in the law, appropriate laws may help employers manage the period of absence in a more practical way.