A new right for employees to request time off work to undertake training or study will be introduced by section 40 of the Apprenticeships, Skills, Children and Learning Act 2009. From 6 April 2010 these new provisions will apply to employers with 250 or more employees. The provisions will apply to all employers (regardless of size) from April 2011.

The conditions for entitlement are:

  • A minimum of 26 weeks' service; and
  • The training must be for the purposes of (i) improving the employee's effectiveness at work; and (ii) improving the performance of the employer's business.

Note that there is no need for the training to lead to a formal qualification.

Employees may only make one application every 12 months. The application must be made in writing and include: a statement that it is made under section 63D of the Employment Rights Act 1996; the subject matter of the training; where and when it will take place; who would provide or supervise it; what qualification (if any) it will lead to; how the employee thinks the study or training would improve both the employee's effectiveness in the employer's business and the performance of the employer's business; and the date on which the employee made any previous application and how that application was made.

On receipt of an application the employer must seriously consider the request, hold a meeting with the employee and respond in a reasonable time period. Employers will be able to turn down requests where they have a sound business reason to do so. The amount of time that the employee may take off to train / study is at the employer's discretion and the employer is not obliged to either pay the employee during the time that they are training or to pay for the course.

This new right closely follows the existing right to request flexible working (meeting, decision, appeal, timing, reasons etc). If the employer fails to comply then the Employment Tribunal may award compensation of up to 8 weeks' pay and/or order the employer to reconsider the application. The employee is protected from detriment for making an application for time to off to train/study and it is automatically unfair to dismiss an employee because an application has been made.