Legal issues: The right to train

googletag.cmd.push(function() { googletag.display(‘div-gpt-ad-1705321608055-0’); });

February 22, 2010

Legal issues: The right to train

Tags: HR

Are you clued up on the latest 'right to train' regulations? Employment law specialists, Eric Gilligan and Jesse Turner, explain the legal implications for organisations.

On 6 April 2010 the new Employee Study and Training Regulations come into force. The regulations implement a new right for employees to request time off from work for training or to study. These regulations, like the regulations applicable to the right to request flexible working, set out how employers should respond to such requests.

Who has the right to request time off for training?

Employees with a minimum 26 weeks of service will have the right to request time off.

The right will initially only apply to employees of businesses with over 250 employees but should be extended to all employees from April 2011.

The right will not apply to agency workers and workers aged under 16. Workers aged 16-18 years already have a similar statutory right under The Right to Time Off for Study or Training Regulations 2001.

Requesting time off

Employees will have the right to request time off to undertake training or study which they believe would improve their effectiveness as an employee and would improve the performance of their employer's business.

This is a broad objective and covers a wide spectrum of training or study, from accredited study leading to a degree, to worksite training on a specific task, to general study to improve literacy. There are no limits on when, where or for how long the employee can undertake the training or study and the request may be for more than one course.

An employee may make as many requests as he/she wants, but the employer is only required to consider one request in a rolling twelve-month period.

No entitlement to time off

Employees should be aware that they are not entitled to be given the time off; they are only entitled to make a request. It is also not a right to take a 'training holiday'. Furthermore, employees are not entitled to be paid whilst they are taking the time off.

What does the employee have to do?

For the request to be valid, it must be in writing and dated and contain the following information:

a statement that the request is made under section 63D of the Employment Rights Act 1996;
the subject matter of the training or study;
where and when it would take place;
who would provide it or supervise it;
what qualification (if any) it would lead to;
how the employee believes it would improve their effectiveness as an employee and the performance of the business; and
the date and method of the last request submitted by the employee

If the request is granted, the employee must also inform the employer if he/she does not undertake the study or training, fails to complete it or if the study or training differs from the description in the request.

What does the employer have to do?

The obligations imposed on employers will no doubt look familiar to many employers and HR directors who have experience with requests for flexible working arrangements.

The employer must consider the request seriously and reply to the employee within 28 days of receiving it and, if the employer requests a meeting, respond with a final decision within 14 days of holding that meeting. The employee’s right to be accompanied at that meeting, to postpone the meeting if their companion cannot attend and to appeal must all be communicated to the employee.

The grounds on which a request can be refused are substantially the same as those for a flexible working request and include such business concerns as the burden of additional costs, detrimental effect on ability to meet customer demand and inability to reorganise work among existing employees. An additional ground for refusing requests for training which is not relevant to flexible working is the employer not agreeing that the training or study would improve the employee's effectiveness and/or the business's performance.

If an employee is unhappy with the result of a request, they will only have a valid tribunal claim if the employer failed to follow the correct procedure or refused the request based on incorrect facts. The maximum award for compensation is eight weeks' pay.

Conclusion

Employers should update any relevant policies to account for the right to request time off for training or study. Larger employers may want to set out a specific policy on this indicating the procedures and providing templates that employees can use to request such time off. The statutory right and its limitations are the bare minimum required, but there is nothing to prevent an employer and employee coming to an agreement for the employee to take time off for training which is not covered by this new regime. Employers may also take the opportunity to make special arrangements regarding eligibility or pay during such periods which fit their own business objectives and HR culture.

There is much in the new regulations for employers to consider, but it remains to be seen whether their introduction will contribute towards the post-recession challenge of greater employee engagement and ultimately lead to better performing businesses.

Eric Gilligan and Jesse Turner are employment law specialists at legal firm, Brodies LLP. For further information, please contact eric.gilligan@brodies.com.