Question from Sherren Collings ([email protected])
Where an employee has requested to take an extended period of leave without pay for 12 months which is not linked to any statutory entitlements e.g. for personal reasons only, what obligations is the company committing to? e.g. if approved is there a legal requirement to guarantee a job upon their return and in the situation where there is no suitable role available at that time would redundancy become payable? Alternatively, can the terms of the leave without pay period agreement stipulate that best endeavors will be undertaken to identify a role however a role is not guaranteed and should a suitable role not be available at the end of the leave period that redundancy would not apply?
Generally, in the situation where an employer agrees to accommodate an employee’s request for extended leave without pay, there is no legal requirement on the employer to guarantee that employee their job upon return. A return to work guarantee applies in the case of an employee returning from a period of unpaid parental leave, whereby he/she will be entitled to return to his/her pre-parental leave position. In other circumstances, an employee who takes leave for an extended period runs the risk that he/she may not be able to return to their previous role (i.e. because someone else may assume their job).
The employee’s absence for 12 months in the scenario you have outlined is also significant if his/her absence is due to illness or injury. An employee who is on leave without pay for 12 months due to his/her injury is not protected from dismissal, as this would not be classified as a “temporary absence” for illness or injury. The employee may still, however, have grounds for an unfair dismissal claim if he/she is terminated harshly, unjustly or unreasonably or for a reason that may give rise to a general protections claim.
An employer is entitled to query whether an employee, who is on an extended leave of absence, is able to meet the inherent requirements of their role. Where evidence shows that the employer cannot, this would provide the employer grounds to terminate the employee’s employment. Otherwise, an employer must be careful not to terminate an employee so as to render such termination harsh, unjust or unreasonable (giving rise to an unfair dismissal claim) or for a reason that may give rise to a general protections claim.
With respect to redundancy, this will only apply where the position that the employee worked previously no longer exists and where there is no suitable redeployment option. In this case, the employer would be required to make redundancy pay, and terms of leave cannot override this entitlement, nor an employer’s obligation to seek redeployment options. A redundancy would not occur, however, where the employee’s position is occupied by another employee upon that employee’s return from leave.