As of 6th April 2010 employees in England, Scotland and Wales have the right to request time off work in order to undertake studying or training. At present this right only exists for employees of employers with 250 or more employees but it will be applicable to all employers from 6th April 2011.
Whilst this new right entitles employees to request time off for study or training, it is not an automatic right to actually be granted the time off. Rather, the concept is similar to the flexible working legislation; the employer is under a duty to consider and may refuse the request on prescribed grounds. The procedure itself is again similar to that applicable in flexible working requests – in summary, a request is made in writing, the employee is then given the opportunity to discuss their application with the employer at a meeting, the employer notifies the employee of the outcome and, if applicable, there is then a right of appeal.
An application for time off for training may only be made by an employee. Agency workers, consultants or self-employed individuals are not covered. Also, employees of compulsory school age and young people engaged on other training courses are not covered by the new provisions.
To be eligible, an employee must have been employed for a minimum of 26 continuous weeks at the date of the request and must not have made any other requests within the previous 12 months. The exception to this is where an employee has made a successful application less than 12 months earlier but the training or course was cancelled by the employer/course provider/supervisor and/or the employee was unable to attend for reasons outside of their control; in such a case the employer should consider any new request for time off.
In addition, the training or course sought must be for the purpose of improving the employee’s effectiveness at work and improving the performance of the employer’s business. However, there is no requirement for the training to result in a formal qualification.
In order for an employee’s request to trigger the formal procedure, it must be made in writing and must specifically state that it is made pursuant to Section 63D of the Employment Rights Act 1996. In addition, it must state the subject matter of the training or course requested, where and when it would take place, who would provide or supervise it, what qualification (if any) it would lead to and detail how the employee considers that it would improve their effectiveness in work and the performance of the employer’s business.
Once in receipt of a request the employer must act within 28 days; either by granting the request or holding a meeting with the employee to discuss their request further. The employee has the right to be accompanied to any such meeting by a fellow colleague.
The employer’s decision should be notified to the employee in writing within 14 days of the meeting.
If the employer grants the request it is only agreeing to afford the employee time off and is not obliged to pay for the training and/or pay the employee’s salary for the period they are absent (subject to overall compliance with the national minimum wage). However, employers of course have the option of meeting either or both of these costs should they consider it appropriate. In any event, the written notice given to the employee should expressly state whether or not they will continue to receive their usual pay whilst training.
It is of course open to the employer to refuse the employee’s request. However, it can only do so for one of the following 10 reasons:
- The proposed study or training would not improve the employee’s effectiveness at work and/or the performance of the business;
- The burden of additional costs;
- Detrimental effect of ability to meet customer demand;
- Inability to reorganise work amongst existing staff;
- Inability to recruit additional staff;
- Detrimental impact on quality;
- Detrimental impact on performance;
- Insufficiency of work during the periods that the employee proposes to work;
- Planned structural changes; or
- Any other reasons set out in future regulations.
If no such reason exists the request must be granted.
Where an employee is not happy with the outcome, an appeal can be submitted. Any such appeal should be made within 14 days of the employee receiving the reasons for the decision and it should set out the grounds of the appeal. An appeal meeting should be arranged within 14 days of receipt of the appeal and the outcome should be communicated to the employee within 14 days of the meeting.
An employee will not have grounds to apply to an employment tribunal simply because their request has been refused. However, the employee may bring a claim if the employer fails to follow the correct procedure or if it bases its decision on incorrect facts or refuses the request for a reason other than the above permitted reasons.
If the claim is successful, the employee may be awarded up to 8 weeks’ pay in compensation and the employer may be ordered to reconsider the request. There are also the usual provisions as to automatic unfair dismissal and protection from detriment.