06 April 2010

Right to request time off for training

Christina Morton
Professional support lawyer | UK

A new right to ask for time off work will operate from today. Initially it will be available in organisations with 250 or more employees, but it will be extended to all organisations, regardless of their size, on 6 April 2011. Employees must have six months’ service to qualify and the training must have the purpose of improving both the employee’s effectiveness at work and the performance of the employer’s organisation.

What are the conditions of entitlement?

Only employees with at least 26 weeks’ continuous employment will be entitled to make a request under the new statutory procedure for time off for training. The training must be for the purpose of improving both the employee’s effectiveness at work and the performance of the employer’s business.

What is the procedure for applying for time off?

An employee may normally only make one application to an employer in any 12 month period. The 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.
  • The date on which the employee made any previous application and how that application was made.

The procedure to be followed by an employer on receipt of an application closely resembles the existing statutory procedure for making an application for flexible working. Thus it involves the employer arranging a meeting (to be held within 28 days of receipt of the application), and then giving a written, dated decision (within 14 days after the meeting). The right to be accompanied applies at meetings under the procedure.

If the employer agrees the application, the decision must state: 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; and how the training costs will be met.

If the employer decides to refuse the application, the decision must state: which of the list of statutory grounds for refusal apply and why; and the procedure to be followed if the employee wishes to appeal the decision.

The appeal procedure includes submitting a written, dated appeal (with grounds) within 14 days of the employer’s decision, to be followed by an appeal meeting within a further 14 days (unless the employer immediately upholds the appeal), and then the appeal decision within a further 14 days.

Employers must consider all requests seriously. They may only refuse a request for a reason related to the cost burden, the inability to reallocate work, the effect on ability to meet customer demand, or the employer’s belief that the training would not improve employee effectiveness or business performance.

All of the time periods above may be extended by agreement.

How much time off is permitted?

There is no right to have the request granted, so the amount of time (if any) allowed off is at the discretion of the employer.

Is time off paid?

The new right does not include the right to payment for the time off. However, under the National Minimum Wage (NMW) Regulations 1999, the time spent carrying out training ‘approved by the employer’ during normal working hours count as ‘time work’ for NMW purposes.

What are the remedies for failure to comply with the new rules?

If the employer does not comply with the new rules the employee may bring a tribunal claim (within three months of the relevant act/failure). The tribunal may award compensation of up to 8 weeks’ pay (or up to 2 weeks’ pay for a breach of the right to be accompanied) and/or order the employer to reconsider the application. Employees are also protected from detriment for making an application, and dismissing an employee for making an application will give rise automatically to unfair dismissal liability.

Christina Morton Professional support lawyer | London

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