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Right to request time off for training

26 March 2010 #Employment


 

From 6 April 2010 employees working for business with over 250 employees will be granted the right to request time off work to undertake study or training under the Apprenticeships, Skills, Children and Learning Act 2009 (‘the Act`). From 6 April 2011 this right will be extended all employees, regardless of the size of their employers business. The right does not apply to agency workers, school-age children, or young employees who qualify for a separate right to time off for training.

 

But what effect will this new right have on businesses which are already struggling to deal with the effects of the recession and perhaps cannot cope with the new drain on resources that this right may impose.

 

Employers who already have good processes in place for dealing with requests for training and/or time off for study should not be unduly concerned by the new legislation. This is because it is unlikely that employees will make formal requests under the statutory regime if they are confident that their request will receive adequate consideration from their employer and not be unfairly rejected. Employers should therefore consider having a training and development policy put in place which specifies a less formal (and therefore more cost effective) process for employees to request training or time off for study.

 

The good news for businesses is that even if an employer does receive a formal request under the Act, employees do not have an automatic right to time off for study or training. However employers do have a duty to consider requests if they are made by an employee who has 26 weeks continuous employment following the statutory process discussed below.  The right also only extends to training which will improve both their effectiveness at work and the performance of their employer`s business.

 

Employees who wish to take advantage of this new right should ensure that their request complies with the statutory requirements; otherwise their employer has no obligation to consider the request. Their application must be in writing, be dated and include the following information: 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 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 and the date on which the employee made any previous application and how that application was made. An employee can only make one application in a 12 month period.

 

On receipt of a request, the employer must hold a meeting with the employee to discuss the application within 28 days. Employees have the right to choose to be accompanied to any meeting held by a fellow worker.

 

If following the meeting the employer decides to grant the request, they must notify the employee in writing, setting out: the subject of the study or training; when and where it will take place; who will provide it; the qualification it will lead to; who will pay for the training; whether the employee will be paid for the time spent; and whether any changes will be made to the employee`s working hours to accommodate the study or training. There is no right to paid time off if the request is granted, however employers may chose to pay the employee for time spent studying if they wish.

 

Requests can only be refused on specific grounds. These are:

  • That the proposed study or training to which the application relates would not improve:
    • The employee`s effectiveness in the employer`s business, or
    • The performance of the employer`s business;
  • The burden of additional costs;
  • Detrimental effect on ability to meet customer demand;
  • Inability to re-organise work among existing staff;
  • Inability to recruit additional staff;
  • Detrimental impact on quality;
  • Detrimental impact on performance;
  • Insufficiency of work during the periods the employee proposes to work;
  • Planned structural changes.

Where the employer`s decision is to refuse the application, the written notice of refusal must be dated and: state which of the grounds for refusal apply; contain a sufficient explanation as to why those grounds apply; and set out the appeal procedure.

 

An employee can appeal against the decision of the employer to refuse the application but must do so within 14 days of the notice of the decision. The notice of appeal must be in writing and must set out the grounds for the appeal. The employer then has 14 days to respond to the appeal. If the appeal is upheld the employer must notify the employee of this in writing, setting out the information listed above. Alternatively, the employer must hold an appeal meeting with the employee to discuss the request and confirm the outcome of the appeal meeting within the next 14 days.

 

Where the decision is to grant the request on appeal, the employer must notify this in writing, setting out the information set out above. If the employer dismisses the appeal, the notification must state the grounds for doing so and contain a sufficient explanation as to why those grounds apply. The notification must also be dated.

 

If an employer fails to comply with the procedure set out above, refuses a request on a non specified ground or rejects an application based on incorrect facts, the employee can complain to an employment tribunal, within 3 months of the date of the breach. If the tribunal uphold a complaint it may require the employer to reconsider the employee`s request or award compensation of up to 8 weeks pay (which is subject to the statutory limit, currently £380).

 

The main pitfall for employers is likely to be falling foul of the strict timetabling provisions. Employers who receive a request should ensure they familiarise themselves with the procedure and deal with the request promptly and correctly.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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