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A member of staff is taking a six-month unpaid break from the practice. What is the best move with regard to her employment?


15 February 2012

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Question in full:

I have a member of our admin staff who is taking a six-month unpaid break away from the practice. She is a very good member of our team and we are keen to have her back once she has had this time away (it is for travel not sick leave). Could you advise me what the best move is with regard to her employment?

Question in full:

I have a member of our admin staff who is taking a six-month unpaid break away from the practice. She is a very good member of our team and we are keen to have her back once she has had this time away (it is for travel not sick leave). Could you advise me what the best move is with regard to her employment?

A: Extended periods of unpaid leave are termed career breaks. Some employers have Extended Leave or Careers Break policies and the most obvious starting point is to check whether your practice has one. Assuming that it does not, you have two options to deal with your employee's career break:  allow her to take the career break under her current contract of employment or terminate her contract and re-engage her in December upon her return.
 
Allowing current contract to continue

  • This is  an employee friendly approach and will allow your employee the security of  knowing her job will remain open on her return. 
  • Your employee's contract of employment and her continuity of service will continue to run during her  career break – be aware that working a certain amount of time  gives employees key statutory rights in terms of bringing an unfair  dismissal claim and when calculating monetary awards for unfair dismissal and  redundancy. 
  • She will  continue to accrue her statutory entitlement to paid annual leave – this is often unattractive to an employer and is one of the reasons why some decide to  terminate and re-engage. 
  • If you carry out promotions, pay reviews or award bonuses whilst  she is on her career break, then consideration must be given to your employee  and she should not be ignored simply because she is absent. 
  • Risk that your employee might  not return within the agreed period – if  she does not and you keep extending her career break, she may accrue a long  period of continuous employment and should you decide to dismiss in the  future, this will have financial implications for your  practice.

Terminate and re-engage

  • Terminate her  contract of employment or ask her to resign with a statement that, where  possible, you will re-engage her in a similar position when she returns to the  practice after her travels.
  • Be careful to avoid promising or guaranteeing  her a job upon return (even if that is your intention); should there be a unforeseen change of  circumstance and a job not be  available, this may give rise to a grievance or possible breach of contract  claim (although this is arguable and outside the scope of this question).
  • Termination of her contract would usually mean that continuity of service would  not continue during her career break.
  • However, the  Employment Rights Act 1996 states that continuity can be preserved  without a contract of employment if there is an 'arrangement'  or 'custom' that both parties have agreed to preserve continuity –  to avoid uncertainty, there should be an  express agreement between you and the  employee on whether or not continuity of employment is to  be preserved.
  • If you need to fill the post of your  employee on the career break, you should do so in the same way as you  would fill the post of an employee on maternity leave; that is, under a  fixed-term contract solely for the purpose of covering for the absent employee.
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