Member Pat Lomas has been tasked with introducing a career break policy with the power to bring about a huge cultural change in the manufacturing business she works in; read on to see the responses from Eilidh Wiseman and Gemma Paterson of Dundas & Wilson’s employment law team in reaction to this particular challenge.

In today’s workplace unemployment can be a difficult experience and there is often a perception that career breaks may be viewed negatively by prospective employers.

As they start their working life, therefore, many employees aspire to a long and uninterrupted career. Nevertheless, as many of us are being encouraged to defer the age of retirement, such a continuous career can stretch before young employees like a prison sentence.

An increasing number of younger employees in particular are, therefore, considering a career break as a temporary escape from the workplace. A career break offers the opportunity to follow personal ambitions, for example, to see the world or to start up their own business. Often individuals who opt to take a career break view their former job as a form of security to which they can return should alternative opportunities not work out as planned.

Many are prepared to take the chance that they may not be able to return to their former career or that they may not be able to return on similar terms and conditions.

Despite the increasing legal burden in relation to periods of absence related to, for example, parental leave, the law currently does not officially recognise career breaks. Therefore whether a career break is treated as a break or a termination can often be out of an employee’s control.

Employers may offer their employees the opportunity to take advantage of a career break but no matter how generous the career break policy appears to be, a career break is technically a termination on the hope of a re-engagement at some later date.

This does not, however, mean that career break policies are worthless from the employee’s point of view. Currently these policies are the only form of regulation provided given that the law does not formally recognise the concept of a career break.

Litigation has occurred in relation to career breaks where a former employee who has been able to return to his or her previous employment seeks to establish that the career break did not impact on continuity of employment.

Naturally, employers are reticent about allowing the period of a career break to count towards length of service which is valuable in relation to the accrual of statutory and contractual rights.

To counter this threat, employers often ensure that there is a clear termination from employment prior to the career break starting. In addition, the majority of career break policies are worded to include the fact that there is no right to return to the same job or on the same terms.

It is usually the case that all employee benefits cease completely during the period of the career break.

Further, whilst the individual may be free to seek alternative employment during the career break (subject to restrictive covenants) he or she is usually not permitted to work for the company from which he or she is taking the period of absence. Many employees on career breaks will therefore find their knowledge and skills becoming out of date during the career break.

However, a key question is whether employment rights should, in fact, be protected if an employee wants to take a career break. In light of the factors discussed above, it would be particularly useful for legislation to provide greater clarity of approach in relation to career breaks.

Areas where new legislation could provide a clearer framework for the operation of career breaks include:

• Codification of the employer's obligations (if indeed there are any) to re-employ a former employee whose career break has finished. While the employer’s policy may provide that the individual may return to work at the end of the break, the individual may no longer be the best person for the job or the business resource requirement may well have changed significantly;
• A structure to determine whether or not to treat distinct periods of employment, split by a career break, as continuous for statutory purposes. This might be particularly helpful for employers who are keen to retain strongly performing individuals who wish to take career breaks. As the law currently stands it is unlikely that the separate periods will be recognised as one period statutorily (even where the employer recognises continuity for benefit accrual)
• An obligation on the employee to advise the employer of his or her intentions as the career break comes to an end. Not knowing whether an employee will in fact return from a career break can currently create resourcing difficulties.

Career breaks are becoming increasingly common given the increasing pressure on employees to continue working past their desired retirement age. Career break policies are helpful in so far as they provide an indication of the intentions of the parties involved. However appropriate legislation would certainly go a long way to improving clarity in this area enabling employers to manager the periods of absence in a more practical manner.