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Career Break Law

Career Breaks: What The Law Says

Privilege Not A Right!

There are no laws that deal specifically with taking a career break – it is only an agreement between the employer and the employee and your company doesn’t have to offer a sabbatical or career break if it doesn’t want to.

Granted A Career Break

However, if your company does offer career break or sabbatical policies as part of your employment agreement and refuses you a break, but other people within your organisation are permitted then you could claim for a breach of contract on discrimination grounds.

Adish Farkhard is a lawyer dealing with employment law for Twenty Twenty Law (/www.twentytwentylaw.co.uk), and suggests that you really need to take a long hard look at the wording of your employment contract.

"Your employer may turn down a request by taking into account the propose for your trip, past performance or needs of the business."

“It is common for employers to allow themselves some flexibility in accepting requests for career breaks, for example, they might allow themselves to turn down a request by taking into account the purpose of your career break, your past performance, the needs of the business or the ability for the business to find adequate cover for you.

“However, if your contract of employment states that you are entitled to a career break, for example, after accruing a certain length of service, then you could have a potential claim for breach of contract if your employer does not honour its side of the bargain. Even if there is no such written term in your contract, if your employer has consistently offered career breaks to employees over a number of years (for example, after accruing a certain length of service), then you might be able to argue that you are entitled to it.”

Returning to Your Old Job

You should also beware that employees may not be able to take legal action if an employer decides you can’t return to your job or a similar one, visit Gov UK (https://www.gov.uk/career-breaks) for more information.

Adish Farkhad has this advice: “As always, the key issue is what you and your employer have agreed. When you go on a career break, it is likely that someone else will need to cover your workload. Therefore you might want the assurance that you will be able to return to your job. Your employer may not want to give any such guarantee, and will allow itself some flexibility, for example by saying that you will be able to return to the same role “so far as is reasonably practicable”, or that you will be given priority consideration for any alternative roles of a similar level. You should pay attention to any promises made by your employer in this area, and ensure that they are recorded in writing.

"You should pay attention to any promises made by your employer, and ensure that they are recorded in writing."

“Some employers require individuals to resign in order to take a career break, and this could place you in a vulnerable position in terms of returning to your old job at the end of the career break. If a business is going to require an employee to resign, it is unlikely to offer any guarantee that there will still be a job at the end of the career break. As well as this, since you have resigned, you are unlikely to have any protection against unfair dismissal.

“However, if you are not required to resign, your employment continues during the career break, and you should therefore be protected from unfair dismissal. This does not mean that your employer cannot dismiss you, merely that if it does then it must do so for a fair reason and using a fair process. For example, during your career break, if the business went through a legitimate redundancy exercise, it could select you for redundancy, provided that it did so on a fair basis.”

Why Companies May Offer a Break

Many employers are willing to consider the possibility as an alternative to losing a valuable employee permanently. Furthermore, in the current climate, it may present an attractive opportunity to reduce their bottom line.

"Career Breaks can be seen as an alternative to losing a valuable employee permanently."

As a result it is becoming increasingly standard practise to have an official career break or sabbatical policy for employees as part of your employment contract. To qualify you usually have to work for the company for a set period of time, usually a few years.

That said, even without a career break policy in place your company may agree to letting you go on career break or sabbatical, if you pitch it correctly!

Adish Farkhard comments: “The key factor is what has actually been agreed between the employer and the employee. Therefore if you are considering a career break you should firstly check what your contract of employment says (if anything) on the subject. It is also worth looking at any staff handbook or HR policies, as these might offer guidance. However, beware that many staff handbooks and HR policies have no contractual force, and companies often reserve the right to vary or withdraw their terms at any time.

“Another useful guide of what to expect is how other career breaks have been dealt with by your employer in the past. Where your employer has consistently applied the same approach and procedure over a number of years, you might be able to argue that you have a legitimate expectation to be treated the same way.”

Taking a career break Companies are increasingly offering career break and sabbatical policies as part of the employment contract

Sabbaticals and Career Break Policies

Gov UK (www.gov.uk) recommends that if your employer agrees to allow you a break, make sure you fully understand the conditions laid down. The policy must be clearly laid out (eg in a staff handbook) and according to gov.uk should cover things like:

  • Eligibility and notice periods
  • How to apply and how long is allowed
  • If the employment contract’s terms and conditions continue - eg qualifying for pay increases
  • Visit https://www.gov.uk/career-breaks for more information

Questions To Ask:

  • What if you are made redundant while on sabbatical?
  • What if you want to extend or curtail your career break?
  • What if you don’t want to come back?
  • What if your job no longer exists and you’re offered a different one?
  • Will your continuity of employment be affected?
  • Will you be able to participate any other paid work whilst away?
  • Will you return to the same job?
  • Will your employee rights, such as benefits / pension be affected?
  • Will your statutory rights be affected?

Get it in writing!

Congratulations! You have your career break. But Adish Farkhad still cautions getting everything in writing: “In any event, if you do go on a career break, we would strongly urge that the terms of it are recorded in a written agreement, signed by you and your employer. Not only does this establish certainty over what you should expect during and after your career break, but it also offers you a potential claim for breach of contract if there is a dispute.”

Adish suggests key areas to cover are:

  • Start and return date
  • Whether either party can alter the return date, and if so on what basis
  • Whether you will be required to attend work at any point during your career break for training
  • Whether the employer requires you to be contactable, and if so on what basis
  • Whether you will continue to be paid during your career break
  • Whether you will continue to receive any benefits during your career break
  • Whether you will have the right to return to your old job at the end of the career break

Contributor: Adish Farkhad

Advice from Adish Farhad

Adish Farkhard is an Associate at Twenty Twenty Law ,a specialist niche employment law firm based in the City of London. She advises senior individuals and corporate clients across a wide range of different industry sectors covering all aspects of both contentious and non-contentious employment law matters. Follow Twenty Twenty Law on Twitter @City_Lawyers.