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How should employers approach sabbatical requests?

Posted on 10th March 2022 in Employment

Posted by

Stephen Jennings

Partner and Solicitor
How should employers approach sabbatical requests?

Work-life balance has very much been a talking point as a result of the covid pandemic. With this, employers have seen an increase in requests for sabbaticals.

It has recently been reported that the chief-executive of Co-op is taking a four month sabbatical in order to help her sons prepare for their upcoming exams. This report has sparked a debate into sabbaticals as employees are not legally entitled to them in the UK. Sabbaticals are often viewed as a privilege for those who are well paid, but with employers feeling the pressure of employees resigning, new solutions are required to recruit and retain staff.

Two ways to legally take a sabbatical

There are two ways employees can legally take sabbaticals. These are:

  1. through a form of paid or (more usually) unpaid leave where the employment contract is still in place, or
  2. as a termination of employment (by the employee through resignation), usually coupled with an offer of re-employment at the end of the sabbatical period.

Employers should be clear which of the above approaches is being used.

An employee resigning does have its legal advantages for the employer. The employee will not accrue annual leave during the sabbatical (which is otherwise unavoidable), and they will not have the right to make a claim for unfair dismissal or redundancy pay if a job is not available to them when they return. The employer would need to be careful to avoid being in breach of contract though if a firm offer of re-employment is made and then not honoured. A potential risk with this approach though is that the break in employment would need to be genuine, especially if in practice the employee is treated as still being employed during the sabbatical period.

In most cases though career breaks are taken in the form of paid or unpaid leave, with the attraction being the employee still has a contract in place. This helps ensure a valued employee will actually return to work and, for many employers, this advantage outweighs the costs of providing annual leave and acknowledging ongoing continuity of employment.

Sabbatical agreements

If you are going to allow an employee to go on sabbatical, you should consider formally recording in writing the terms of the agreement reached. If an employee will remain employed during their sabbatical, a sabbatical agreement should be in place to make it clear which contract terms and benefits (e.g. salary and pension) are suspended and any conditions which apply during the sabbatical.

Because of the disruption that sabbaticals cause and the risk of challenge if decisions are made inconsistently, employers may wish to consider whether any eligibility criteria which employees need to meet before applying for a sabbatical. Things to consider might be:

  • A minimum service requirement.
  • Time limit for the length of the sabbatical.
  • A limit to the number of employees already on sabbatical at one time.
  • Whether any changes will apply in different teams or in relation to different roles (e.g. a sabbatical may be more feasible for someone undertaking a non-specialist role where cover is easily available).
  • Limiting the number and length of sabbaticals one employee can take.

When to reject a sabbatical request

There is no general right to take a sabbatical so employers are generally free to refuse any request. The risk of doing so of course is that a valued employee may then resign. If this is a concern, a non-absolute refusal may be better e.g. if the timing is not optimal, a promise to review a sabbatical request in six months may be preferable to a blunt refusal.

Pitfalls

The most obvious pitfall of course is that a refusal may lead to a valued employee leaving or becoming de-motivated or burnt out. However there are other less obvious risks as well, including the risk of a discrimination claim if you adopt an inconsistent approach or time off is needed in connection with a disability, or even a challenge under flexible working legislation.

How can we help?

The topic of employees taking sabbaticals isn’t new, but with the potential increase in requests and the risks involved, care needs to be taken to avoid the potential pitfalls. Do contact our specialist employment lawyers if you have any questions regarding this topic.

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