New right to request time off for training – A guide for employers

May 26, 2010 7:25 am Published by

New right to request time off for training – A guide for employers

Since 6 April 2010 employees working for a business with more than 250 employees have had the right to request time off for training. From 6 April 20111 all employees will have this right. Here we consider some Questions that Employers may have in relation to this new right.

Can anyone apply for time off for training?

No – currently employees in a business with over 250 can apply. After next year employees of a business of any size will have the right to request the time off. Special rules apply to those under 18. Employees have to been employed continuously employed by their employer for 26 weeks before they can apply.

What type of training counts?

To qualify there is no need for the training to lead to any formal qualification but the training must be :-

  • for the purpose of improving the employee’s effectiveness at work; and
  • for the purpose of improving the performance of their employer’s business.

How much time off can be taken?

There is no limit and the amount of time allowed off is at the discretion of the employer. The employer may grant all, part or none of the time off requested by the employee.

Is there a right to payment?

No – There is no right to payment, even if the request for time off is granted. However in certain circumstances time training may count towards working time for the purpose of calculating the National Minimum Wage. Employers should take legal advice if this is likely to be a concern.

How does the employee apply?

 The application must be in writing, be dated and include the following information:

  • A statement that it is made under section 63D of the ERA 1996.
  • The subject matter of the training.
  • Where and when it would take place.
  • Who would provide or supervise it.
  • What qualification (if any) it would 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.
  • The date on which the employee made any previous application and how that application was made.

I have received an application from an employee, what do I do now? What is the procedure?

In brief the employer must hold a meeting with the employee to discuss their application within 28 days of receiving the application.  The employer must then give the employee a written, dated notice of their decision within 14 days of the meeting.

Do I have to agree to the application?

 No – there is no right to have time off for training, it is the right to request it, and have that request properly considered. Employers will be required to consider all requests seriously. They may only refuse a request if they think that one of a number of specified business reasons  apply. These includes the cost burden, inability to reallocate work, effect on ability to meet customer demand, or the employer’s belief that the training would not improve employee effectiveness or business performance.

If I say no, is that the end of it?

No – the employee has a right to appeal if they want to. They must do this within 14 days of the employer’s decision. Appeals must be in writing, dated, and stating the grounds for the appeal.  If the employer agrees with the appeal they must write within 14 days to inform the employee their appeal has been successful, or to hold a meeting to consider the appeal.

Within 14 days of the appeal meeting, the employer must notify the employee in writing (dated) of their decision, providing the information in the appropriate column of the table below.

What are the requirements for meetings under this process?

The time and place of all meetings under the procedure must be convenient to both employee and employer. To ensure this or to give the employer more time, the parties can agree to extend any of the time periods referred to above. The employer must ensure that this is recorded in writing and a signed and dated copy should be given to the employee specifying what the extension period is, what it relates to, and the date on which the extension ends.

Employees have the right to be accompanied by a colleague of their choosing to any meeting under the procedure. The companion must be allowed to address the meeting, although they are not entitled to answer questions on the employee’s behalf. The employee can discuss things between them during a meeting.

What information needs to be given in the decision notice?

There are 3 possible decisions, and the table below summarises what the written notice needs to contain:-

Employer Agrees to Application

Employer agrees in part to application

Employer turns down the application

  • The subject of the study or training.
  • Where and when it will take place.
  • Who will provide or supervise it.
  • What qualification it will lead to.
  • Whether the employee will be paid for the time spent studying or training.
  • Whether any changes will be made to the employee’s working hours to accommodate the study or training.
  • How the training costs will be met.
  • Make clear which part of the application is agreed and which part is refused.
  • Give the information detailed above in respect of both the part agreed to and the part refused (see other columns left and right).
  •  

    • What are the grounds for refusal.
    • Why, in sufficient detail, those grounds apply.
    • The appeal procedure to be followed if the employee wishes to appeal the decision.

     

    My employee has changed their mind. Can I just forget about the application?

    The employer can treat the application as withdrawn if the employee notifies them in writing or verbally. Employers should confirm this is their understanding in writing, particularly if the withdrawal is verbal.

    The employee did not attend the meeting. Can I just forget about the application?

    Yes and no! If the employee has failed to attend more than once without reasonable cause, you can treat the application as withdrawn. So, if they have missed one meeting it should be rescheduled. If they fail to turn up the second time without reasonable cause, then you can treat the application as withdrawn.

    What if I don’t comply or mess the procedure up?

    The employee can bring a claim in the Employment Tribunal for up to 8 weeks pay. Additionally there can be further claims, which could in some situations include constructive dismissal, or detrimental treatment for exerting a statutory right, if you treat employees detrimentally for making the request.

    Where can I find out more?

    General guidance has been produced by the Government in a leaflet for employers called “The Right to Request time to Train” which can be found on the Business Link website.

    For specific queries please contact Victoria Young, employment solicitor at Blocks who will be able to assist with this and any other employment related legal matters vy@blockslegal.co.uk direct dial 01473 343922.

    The above is general comment only and individual advice should be taken

    Categorised in:

    This post was written by blocks_admin