As part of the proposed Education and Skills Bill included in the recently-published Draft Legislative Programme for 2008/09, the Government has announced that it intends to strengthen workplace skills training by creating a new right for employees to request time off from their jobs to undertake relevant training. Subject to Parliamentary approval, the new right will come into effect in 2010.

The Government is now consulting on its proposals.

How the scheme will work

The proposed scheme will work along similar lines to the existing flexible working regime. Past experience of that scheme has shown that it has not caused as many headaches for employers as was originally feared and it is hoped this will be the case when the right to request time to train is implemented. The Government’s hope is that employers’ familiarity with the right to request flexible working procedure will facilitate that implementation.

Under the proposals, employees in England will have a legal right to ask their employer for time off to undertake “relevant training”. Employers would then be under a duty to give fair and serious consideration to the request. Where an employer does not feel that there is a good business reason for the training it will be entitled to turn down the request. The consultation document proposes 10 permissible reasons for turning down a request (see below).

The new right will apply to all employees (including voluntary workers who are treated as ‘employees’) who have 26 weeks’ continuous service with their employer.

What will constitute relevant training?

The aim of the new right is to encourage employers and employees alike to invest in relevant training that is likely to improve productivity and effectiveness in their role. Examples of relevant training might include courses leading to a qualification such as a National Vocational Qualification (NVQ) or in a foreign language or in English as a Foreign Language. The relevant training could also be as basic as being taught how to use spreadsheets. It will be up to the employer to decide whether the course is likely to provide benefits to the particular employee and to its own business. This is not about training to assist the employee to be promoted or to make him more employable elsewhere.

Who will pay for the training?

The Government is not proposing that employers be compelled to pay for the training and employers granting training requests will have access to Government support and funding, in particular its ‘Train to Gain’ service. The Government also recognises that many companies already invest heavily in training for their staff and may therefore provide in their training budget for any requests for time off to train.

Employers may need to be careful when deciding which training to fund so as not to leave themselves open to potential claims for discrimination against certain groups or individuals eg, on the grounds of sex, race or age, etc.

Although it is not specifically dealt with in the consultation, the Government has subsequently clarified that employers will not be obliged to pay an employee’s salary whilst they undertake any training agreed under the new right although it “would expect many to choose to do so”.

Making the request

The procedure for making a request is similar to that for requesting flexible working. Under the proposals, employees will need to set out their request for time off to train in writing. The written request should include details of the training the employee wishes to undertake, details of any qualifications (if any) he would receive on completion of the training and how much time off he is requesting. The employee should also provide the start dates and the location at which they will undertake the training. There is currently no proposal to limit the time that an employee can have off work to undertake the training he has requested although employers will obviously take into account the normal amount of time it takes an individual to complete a particular course or achieve a particular qualification. In line with the flexible working rules, it is proposed that employees will only be able to make one request for time off to train in any 12-month period. It will be possible, however, for that one request to cover more than one type or course of training.

Employees will also be asked to include details of how they feel the requested training is related to their work, how it will assist them to be more effective and productive at work and how it will help their employer improve its business performance and productivity. So, unless you work in the local branch of Interflora, a request to attend a week’s course on flower arranging is likely to fall at the first hurdle!

The Government believes that employees should be entitled to be accompanied to meetings to discuss their requests and (uniquely in the employment field, for no apparent reason) it is not proposing to place any restrictions on who they can ask to be their companion. Under the Regulations governing flexible working requests, employees can only ask to be accompanied by a fellow employee.

Considering the request

It is important for employers to remember that this is a right to request time off to train and there is no obligation on employers to agree to the request. Turning down a request, however, will require one or more acceptable business reasons. Potentially acceptable business reasons are:

  • the requested training is not relevant to business productivity and performance.
  • the requested training is not available or would not be run at a time or location compatible with the effective running of the business.
  • the additional cost associated with granting the request is too high. For example, the cost of arranging temporary cover for the employee’s shifts may be prohibitive and/or disproportionate to the likely benefit gained. 
  • the employee’s absence whilst training will have a negative impact on the employer’s ability to conduct its normal business and meet the needs of its customers.
  • an inability to reorganise the employee’s work among existing staff if, for example, he is requesting a substantial amount of time off.
  • an inability to recruit extra staff to provide the cover for the employee undertaking training which would be necessary if the request were granted.
  • a negative impact on the quality of output of the business as a result of the request being granted.
  • a negative impact on the performance of the business as a result of the request being granted.
  • there is insufficient work available at the times when the employee has proposed working alternative hours to help the employer accommodate his training absences.
  • there are planned structural changes within the business and it is not clear whether a request for time off to train can be granted.

Employers will be entitled to treat requests for time off to train on a case-by-case basis. As a result, there may be situations where one request is granted but a subsequent apparently similar request is turned down on the basis of one of the business reasons set out above. It will be essential for an employer to be able to demonstrate its thinking in each case eg, via meeting notes or memos.

Disputes

Where the request for time off to train has been rejected, an employee will have a right of appeal. If he is still not happy, he will be able to bring a claim in the Employment Tribunal but only on the grounds that the employer failed to follow the correct procedure, for example that the application was rejected on the basis of the wrong facts. If the Employment Tribunal finds in favour of the employee, it could require the employer to re-consider the application and could also make an award of compensation. Under the flexible working Regulations, employers can be ordered to pay up to 8 weeks’ pay. The level of compensation under the right to train regime has not yet been specified.

The refusal of the request may also generate a grievance which would then have to be dealt with under the revised Acas Code on discipline and grievance that will in due course replace the statutory dispute procedures (which will almost certainly have been repealed by the time the new right is implemented). Employees are also protected from being subjected to a detriment by their employer in relation to seeking to enforce a right under the flexible working Regulations and it is likely that similar protection will apply to the right to request to train. Furthermore, the subsequent dismissal of an employee because he has made a legitimate request for time to train would be automatically unfair.

The consultation document – ‘Time to Train – Consulting on a new right to request time to train for employees in England’ – is available on the Department for Innovation, Universities & Skills’ website at www.dius.gov.uk

The consultation closes on 10 September 2008.