The new right to request time off for training

The Government has introduced a new right for employees called 'time to train'. This is in the Apprenticeships, Skills, Children and Learning Act. The procedure for requesting training closely follows the procedure for requesting flexible working. The new Act amends the Employment Rights Act 1996.

Who is eligible?

From 6 April 2010 an employee who works for an employer with 250 or more employees can ask for training.

An important change for employers is that from 6 April 2011 the right will apply to all employees working in organisations of all sizes, irrespective of how many employees there are.

Employees are only eligible for this right if they have worked for an employer for 26 weeks. Certain employees are excluded, such as agency workers and young people who already have a statutory right to time off for training. 

Type of training

The objective of the training is that it will help improve business performance and your employees’ effectiveness in your business.  Such training could lead to a qualification or enable employees to develop further skills in their job.  It could be training related to the employee’s work or training which would help them to progress in that or another area of your business.

Delivery

The training can be delivered in a variety of ways, for example, on the job or by e-learning.

Making a Request

To comply with the legislation an employee’s request must contain the following information:

• that it is a request under Section 63D of the Employment Rights Act 1996
• the subject matter of the training
• the name of the qualification the training will lead to (if any)
• where and when the  training would take place
• who would provide or supervise the training
• an explanation of how they see this training improving their effectiveness at work and improving the performance of your business
• whether they have made a previous request and, if so, the dates the request was made and  sent to you.

If the above information is not included the request does not count for the purposes of the legislation but you should tell your employee why you are not going to consider his/her request and the information which is missing from it.

Time limits

Normally, an employer only has to consider one request from each employee in any 12 month period. If an employee makes more requests than this, you may not have to consider them.

 Consequence of an employee’s request

There is a procedure for considering a 'time to train' request. Within 28 days of receiving the request you must either:

• accept it and give your decision in writing; or
• arrange a meeting with the employee to discuss it and within 14 days of that meeting inform the employee in writing of your decision.

It is possible to extend the time limits for holding meetings and issuing notices of decisions on requests and appeals with the agreement of your employee and if this happens you must confirm the extension in writing.

Consideration of a Request

As an employer you must give serious consideration to a request and reply within the required time. You can refuse a request for sound business reasons or if you consider the training would not improve the employee’s effectiveness or their work performance but you should be prepared to explain these reasons to your employee.

Arranging a Meeting

If you decide to meet your employee to discuss their request you must allow them to bring a fellow worker or a trade union representative to the meeting.

The purpose of the meeting is to discuss all aspects of the request including how the training will improve their performance, improve business performance, be delivered and be paid for. There is also the issue of how it can be accommodated into the working day.

During the discussion you may suggest some different training options or different ways in meeting the employee’s training need.

Cost of training

The request will not alter any arrangements already in place for training but it is up to the employee to discuss with you how the training will be funded. You are not obliged to pay for it.

Agreement to request

If you accept the request you must confirm this in writing to your employee setting out details of the subject of the study or training, where and when it will take place, who will provide or supervise it, the name of the qualification it will lead to (if any), how the training time will be taken, for example, whether it will be paid, unpaid, or whether the employee will work flexibly and how the costs of the training will be met.

Reasons for refusal

Providing you do not discriminate against an employee, you can refuse the request on the following grounds:

• the training would not improve the employee’s effectiveness in your business
• the training would not improve the performance of your business
• the additional costs
• it would cause a detrimental (negative) effect on your ability to meet customer demand
• you cannot re-organise the employee’s work among existing staff
• you cannot recruit additional staff
• it would cause a detrimental impact on quality
• it would cause a detrimental impact on business performance
• there is insufficient work during the periods the employee proposes to work
• it conflicts with planned structural changes

You must tell the employee in writing the reason(s) for refusal.

Appeal

If the employee wishes to appeal they must do so within 14 days of your decision. You must arrange an appeal meeting within 14 days of them asking for the appeal and the same rules apply as for the first meeting. You must give your decision on their appeal within 14 days of the appeal meeting.

Sanctions on refusal

If an employee considers that an employer has not complied with the Act or has refused the training request and the refusal has been based on ‘incorrect facts’, they can apply to a Tribunal. If the Tribunal finds in the employee’s favour the maximum award they can make is 8 weeks pay (up to a statutory cap of £ 380 per week).

If you want any further information on this new procedure or if you want advice on putting together a pro forma  letter for your employees to use please contact Fiona Hume on 01283 531366.

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