Employees will soon have the right to request time for training no matter what the size of your company is...
Employees who work for an organisation that has 250 or more staff have the right to request time off work to undertake study or training. However, from 6 April 2011, the right will apply to all employees, regardless of the size of the employer
In order to qualify for the right to make the statutory request, an employee must have 26 weeks’ continuous service. The training must be for the purpose of improving their effectiveness at work and improving the performance of the employer’s business.
An employee is only entitled to make one application in any 12 month period. The employee must set out his or her request in writing, date it and include certain required information. Amongst the required information is a statement that the request is made under Section 63 D of the Employment Rights Act 1996.
If a valid application is made, what do you have to do?
In broad terms, the procedure that must be followed closely mirrors that for considering a request for flexible working. If you wish to grant the application in full, this can be done without having a meeting to discuss it. Otherwise, a meeting must take place within 28 days of receipt of the application. A written decision must be communicated to the employee within 14 days of the meeting taking place, setting out the reason or reasons for the decision and, if refused, granting the employee the right to appeal against the decision. The employee has the right to be accompanied by a fellow work colleague at any meeting under the procedure. Unlike disciplinary and grievance meetings, there is no alternative option of bringing an accredited trade union representative as the companion.
If the request is granted, there is no right to receive payment for this time off. You may nonetheless wish to consider paying the employee, as if you grant the request you are recognising that the training is for the dual and related purposes of improving the employee’s effectiveness at work and the performance of your business.
Just like flexible working, it should not normally be too difficult for an employer to identify a ‘permissible’ reason for refusing a ‘time off for training’ request. Further, an employee cannot bring a claim under the new law asking an employment tribunal to substitute its own decision for the employer’s on whether the application should have been granted. However, again just like flexible working, this does not exclude the possibility that an employee may successfully bring a discrimination claim arising out of the same refusal.
Although it is a little early to predict what litigation might arise out of this new right, it is possible that the existing age discrimination laws would provide a remedy to an older worker who was refused time off for training on the basis that the employee would not be employed for long enough for the employer to get the benefit of the training.
Where an employer fails to follow the correct procedure, an employment tribunal has the power to award up to eight weeks’ pay.
Where an employee is dismissed because an application for time off for training has been made, the employee will be automatically unfairly dismissed. Compensation can also be awarded for a detriment short of dismissal.
Therefore, the key points for employers to be aware of in dealing with time off for training requests are to ensure the correct procedure is followed and to be aware of any discrimination issues that might arise out of a refusal of a request.
The Government has published useful guidance for employers here.
Alternatively, Just Employment Law would be pleased to advise you on any particular request you receive.