How to get a grip of sabbaticals

With flexible working now a legal right for employees, HR professionals are likely to handle more requests for sabbaticals. Victoria Hattam and Kathryn Clapp take a look at the issues for HR.

Career development

There has been an increasing trend in employees wanting to take sabbaticals - whether to carry out full-time study, research, learn a language, or, more commonly these days, to travel. They are increasingly viewed as an important element in career development, which can broaden experience and skill sets. The Department of Trade and Industry is keen on sabbaticals as part of its work-life balance campaign, aimed primarily at balancing work and family life.

What is a sabbatical?

A sabbatical is a voluntary arrangement where an employee takes paid or unpaid time off over and above their usual leave allowance. Sabbaticals are most common at larger organisations with a more flexible workforce, but should not be written off by smaller employers - they are often seen as an important benefit and can improve employee retention.

Consider the situation where a key employee requests time off - a refusal by the employer may well mean the employee leaves his job whereas a sabbatical may allow them to be retained for the future. Unpaid sabbaticals have also been used during the current economic downturn by employers as an alternative to redundancy - a temporary period with reduced numbers of paid staff could tide over an employer through a period of economic uncertainty.

General principles

There is no general legal right to a sabbatical and, unlike other types of absence from work, such as sickness, holiday, maternity and parental leave, there is no specific legislation or case law governing sabbaticals. This means that an employer and employee are free to agree most of the terms relating to sabbaticals.

Some employers have policies setting out the availability and terms of sabbaticals which improves certainty and helps to address the issue in advance. Sabbaticals can also be offered on an ad hoc basis. Either way, it is important that the terms are agreed with the employee, preferably in advance and in writing. Employers will usually have several months leading up to a sabbatical to consider the terms and make the necessary arrangements to cover work.

Returning to work

One issue which often arises is whether the employee can return to their existing job and whether they have continuity of employment during the absence for the purposes of statutory employment rights such as unfair dismissal - particularly where these are not discussed in advance.

A recent case held that a four-year child-break broke continuity of employment because there was nothing to indicate that the employee and employer had arranged that the employment relationship would continue during that time.

If a definite arrangement is made that an employee can return to the same or a similar job, it is likely that continuity of employment will exist throughout the sabbatical - statute provides that continuity exists where there is an absence from work such that, by arrangement or custom, the employee is regarded as continuing in employment. Even if this point is not addressed in advance, continuity may well exist and could land an unsuspecting employer with statutory employment obligations.

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: