Thursday, November 14, 2019
Career breaks are relatively uncommon in the Irish private sector. In contrast, they have been a benefit available to public sector employees for some time. The public sector arrangements are very generous – and can last from six months to five years. Breaks are available for a variety of reasons – ranging from child care responsibilities to educational opportunities to wanting to travel abroad.
So are these benefits an option in the private sector? And what are the implications for employers if they decide to introduce such a scheme in their own workplace?
The first point to note is that there is no legislation specifically governing career breaks in Ireland. As every employer knows, many aspects of the employer–employee relationship are regulated by law – but this is not one of them. In practical terms, this means that employees have no automatic entitlement to a career break in the first place.
In fact, it’s interesting to note that a private-sector employee’s entitlement to time off work is actually quite limited in this country. An Irish employee is entitled to the statutory minimum of 20 days of annual leave, but no more than that, unless they have negotiated a greater allowance directly with their employer. Parents and parents-to-be can obviously avail of maternity, adoptive, parental and paternity leaves – but only in those circumstances. Likewise, sick leave, force majeure leave and carer’s leave are all available – but they too are only available in defined circumstances.
None of these are really comparable to the generally accepted concept of a career break – which typically means that an employee can take time off work to spend time in any way they wish.
As there are no fixed rules in place, employers enjoy a fairly significant level of flexibility when deciding whether to introduce a career break scheme. Because a private-sector employee has no automatic entitlement to a career break, any benefit is entirely discretionary.
It’s understandable why an employer might want to put a career break scheme in place – such a benefit is going to be quite attractive to staff. In light of the health of the economy, Irish employees are increasingly able to pick and choose where they work, so employers have to make more of an effort to attract talent.
So what does an employer need to bear in mind when implementing a career break scheme?
The first point to consider is eligibility. Where career breaks exist in the private sector, they tend to be service–based; in other words, an employee will typically have to have a certain level of service before they are eligible to apply. This contrasts with the public sector, where an employee can typically seek a career break once they have completed probation. A private sector employer, however, might wish to impose more stringent rules.
An employer also needs to consider documentation – this may be the most important point of all. Even if an employer decides to introduce a policy (perhaps reflected in a staff Handbook or in another employer’s policy/procedure), it’s still vitally important to ensure that the terms of individual breaks are set out clearly in writing.
A number of important points need to be documented. First of all, is an employee entitled to be paid during the career break? From a legal perspective, a career break is a departure from the normal parameters of the employment relationship, the most crucial of which is the employee agrees to provide services of value and the employer agrees to pay for them. Neither is occurring during a career break – meaning an employer is justified in declining to pay.
As well as that, does the employer want to impose any restrictions on what the employee is doing during the career break? The public service, for example, restricts staff from being in employment in Ireland during a career break. Will a private sector employer want to impose similar restrictions? It’s definitely a point individual employers need to consider.
It’s also essential that an employee understands that existing obligations in the contract of employment (confidentiality, for example) remain fully in force for the duration of the career break.
Employers also need to be mindful of equality legislation. If a career break scheme is available to the workforce, it has to be implemented objectively – an employer can’t, for example, deny applications from staff based on age, marital status or any of the other prohibited grounds in legislation. If a scheme is available, everyone must be entitled to avail of it.
All of these are things that need to be carefully borne in mind before embarking on a career break scheme. One of the things an employer wants to avoid is affording additional benefits to staff – but not clearly thinking through the consequences.
For further information on this topic, please contact Patrick Walshe.