The Right to Request Time to Train

NICOLA NEWBEGIN

THE RIGHT TO REQUEST TIME TO TRAIN

THE RIGHT

Introduction

The introduction of the right was part of a government drive to increase the UK’s skills base. There was a concern that too many employees were struggling with low or out-of-date skills.
In OECD ratings, the UK was 16th out of 29 in respect of low skills, 19th out of 29 in respect of intermediate skills and joint 11th out of 30 on high skills. The proportion of adults in the workforce with the equivalent of a level 2 qualification or better was 67% in the UK, compared with 88% in the USA.
A 2009 National Employer Skills Survey showed that around 10 million employees go without training each year and only 35% of employers had a training budget.
The aim of the new right was to promote greaterdialogue between employees and employers about skills and training and to support and encourage employers to invest in the skills of their employees as a driver of future business performance.

Sources of law and related guidance

The relevant legislation can be found in:
Chapter 2 of Part 1 of the Apprenticeships, Skills, Children and Learning Act 2009, which introduces a new Part 6A to the Employment Rights Act 1996 (“ERA 1996”);
Schedule 1 to the Apprenticeships, Skills, Children and Learning Act 2009 which introduces various consequential changes to the ERA 1996, Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA 1992”) and Employment Tribunals Act 1996;
The Apprenticeships, Skills, Children and Learning Act 2009 (Commencement No 2 and Transitional And Saving Provisions) Order 2010 (SI 2010/303) (“Commencement Regulations 2010”);
The Employee Study and Training (Eligibility, Complaintsand Remedies) Regulations 2010 (SI 2010/156) (“Eligibility, Complaints and Remedies Regulations 2010”);
The Employee Study and Training (ProceduralRequirements) Regulations 2010 (SI 2010/155) (“Procedural Requirements Regulations 2010”);
The Employee Study and Training (Qualifying Period of Employment) Regulations 2010 (SI 2010/800) (“Qualifying Period of EmploymentRegulations 2010”).

Outline of the nature of the right

A few key points should be noted about the nature of the right:
It is a right to have a request to train considered and for it only to be refused on certain grounds;
It is NOT an absolute right to have time off to train;
It is limited to certain types of training, essentially those likely to benefit the employer’s business;
There is no right for the employer to cover the cost of any training nor to pay the employee for the time spent training.

Who has the right to make such a request?

A “qualifying employee” has the right to make the request[1]. A “qualifying employee” is an employee who is not excluded and who has been employed continuously for a period of not less than 26 weeks. The rules set out in Chapter 1, Part 14 ERA 1996 apply for determining whether or not an employee has the requisite period of continuous employment.
The following persons as excluded from the right:
A person of compulsory school age;
A person to whom Part 1 of the Education and Skills Act 2008 applies (due to participate in education or training or 16 and 17 year olds);
A person who, by virtue of s29 of that Act, is treated as a person who whom that Part applies (extension for persons reaching 18);
A person to whom s63 ERA 1996 applies (right to time off for young person for study or training);
An agency worker.
The new right was introduced for all purposes on 6 April 2010, except in relation to small employers, being an employer who employs fewer than 250 employees[2].
The right is due to be extended to small employers with effect from 6 April 2011[3]. However, the government is currently consulting on whether or not this should happen, as is discussed further below.

HOW IT WORKS IN PRACTICE

Making such a request

What can be requested?

The application must be made for the purpose of enabling the employee to undertake study or training (or both) the purpose of which is to improve:
the employee’s effectiveness in the employer’s business, and
the performance of the employer’s business[4].
It is therefore a right to request a very specific form or training and not a more general right.
However, other than as set out above, the request may relate to study or training of any description and relate to more than one description of study or training. In particular the study or training may be training or training that if undertaken:
would be undertaken on the employer’s premises or elsewhere, including the employee’s home;
would be undertaken by the employee while performing the duties of the employee’s employment or separately;
would be provided or supervised by the employer or by someone else;
would be undertaken without supervision;
would be undertaken within or outside the UK[5].
The study or training need not be intended to lead to the award of a qualification to the employee[6].

How must the request be made?

The application must:
be in writing[7];
be dated[8];
state that it is an application under s63E ERA 1996[9];
state the date on which the employee’s last section 63D application (if any) was submitted to their employer and the method by which that application was submitted[10];
give the following details in respect of the proposed study or training:
its subject matter;
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 that he proposed study or training would improve the employee’s effectiveness in the employer’s business and the performance of the employer’s business[11].

The employer’s duties in response to such a request[12]

No previous application within the previous 12 months

The requirements to consider the application only apply if an employee has not made a s63D application within the preceding 12 months[13], unless the employee asks the employer to ignore the previous request where either:
the employee failed to start the agreed study or training due to an emergency or unforeseen circumstance beyond the employee’s control or cancellation of the study or training by the employer, the institution at which the employee was due to undertake a course, the person whom it was agreed would supervise the training or any other proposed provider or facilitator of the proposed study or training, except were the cancellation of the study or training is attributable to the employee’s own conduct in relation to the study or training; or
the employee submitted the earlier application by mistake too soon after a previous s63D application, submits a current application which the employer would be required to consider but for the earlier application and the employee, at the time of making the current application, notifies the employer that the earlier application was submitted too early by mistake and that the employee wishes to withdraw the earlierapplication.

Procedural requirements[14]

Unless the employer agrees to the application and notifies the employee within 28 days of the application, within 28 days after receipt of the application the employer must hold a meeting to discuss the application[15]. The meeting must be convenient to the employer and employee[16]. If the individual who would normally consider the s63D application is absent from work on annual or sick leave, the 28 day time limit for considering the application commences on the sooner of the day when the individual returns to work and 28 days after the application is received[17].
The employer must notify the employee of its decision within 14 days of such a meeting. The notification must be in writing and be dated[18].
The various time limits (including those relating to appeals) can be extended by agreement between the employer and employee[19].
If the decision is to agree to the application, the notification must give the following information[20]:
the subject of the study or training;
where and when it will take place;
who will supervise it;
what qualification (if any) it will lead to;
whether the employer will pay any remuneration under the contract of employment for the study or training;
any changes to the employee’s working hours in order to accommodate the agreed study or training;
how any tuition fees or other direct costs of the agreed study or training will be met.
Nothing in Part 6A ERA 1996 prevents an employee and employer from making other arrangements in respect of study or training[21].
If the decision is to refuse the application, the notification must[22]:
state which of the statutory grounds of refusal are considered by the employer to apply;
contain sufficient explanation as to why those grounds apply; and
set out the appeal procedure.
If the decision is to agree part of the application, the notification must[23]:
make clear which part is agreed to;
make clear which part of the application is refused;
give the information set out above in respect of the part that is agreed;
give the information set out above in respect of the part that is note agreed.

Right to be accompanied[24]

If an application or appeal meeting is to be held and the employee reasonable requests to be accompanied at the meeting, then the employer must permit the employeeto be accompanied at that meeting by a single companion ho is chosen by the employee and who is a worker employed by the same employer as the employee.
The companion may address the meeting and confer with the employee during the meeting, but may not answer questions independently of the employee.
Where the employee’s chosen companion will not be available at the time proposed for the meeting by the employer and the employee proposes an alternative time which is convenient for the employer, employee and companion and falls before the end of 7 days beginning with the date proposed by the employer, then the employer must postpone the meeting to the time proposed by the employee.
The employer must permit the worker to take time off during working hours for the purpose of accompanying the employee to said meetings. The provisions of TULRCA which apply to the taking of time off for the carrying out of trade union duties apply[25].

Grounds upon which an application may be refused

The employer may only refuse an application if the employer thinks that one or more of the permissible grounds for refusal applies in relation to the application.
The permissible grounds for refusal are:
That the proposed study or training to which the application of the part in question 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 theemployee proposes to work;
planned structural changes.

Variation by agreement[26]

An employer and employee may agree to dispose of a s63D application or part of it by the employer granting a varied form of it. Where such an agreement is reached, the notice given by the employer must:
make clear the variation agreed to;
be supported by written evidence of the employee’s agreement to that variation; and
make clear –
whether any remuneration under the employees’ contract of employment will be paid for the time spent undertaking the agreed study or training;
any changes to the employees’ workinghours in order to accommodate the agreed study or training; and
how any tuition fees or other direct costs of the agreed study or training will be met.

What happens if the request is granted?

Employee’s duties if the employer agrees to the request

If a request is granted, then the employee must inform the employer if he or she:
fails to start the agreed study or training;
fails to complete the agreed study or training;
undertakes or proposes to undertake study or training that differs from the agreed study or training in any respect, including in respect of those details that the employee is required to provide the employer with when making the application[27].
Such information must be provided to the employee’s employer within 14 days of such an event occurring. The notification must be in writing and be dated[28].

What happens if the request is not granted?

Employee’s rights if the employer refuses the request or part of the request

An employee is entitled to appeal against the employer’s decision to refuse his or her application or part of his or her application[29].
The employee must notify the employer that he or she is appealing the decision by giving notice within 14 days of the notification or the refusal. The appeal must be:
in writing;
set out the grounds of appeal; and
must be dated[30].
Within 14 days of said notification, the employer must holda meeting to discuss the appeal.
Within 14 days of such a meeting, the employer must notify the employee of its decision on the appeal. Such notification must be in writing and must be dated. If the appeal is successful and the application granted, the employer must provide the same information as the employer would have had to specify if the application had been granted originally. If the employer dismisses the appeal, it must state the grounds for the decision and contain a sufficient explanation as to why those grounds apply.
As with the original meeting to discuss the application, the time and place of the meeting must be convenient to the employer and the employee and the employee hasthe same right to be accompanied.

COMPLAINTS TO AN EMPLOYMENT TRIBUNAL

Refusal of an application

An employee may present a complaint to a tribunal if:
the employer has refused the application or part of the application on grounds other than those listed in Section 63F(7) ERA 1996; or
the employer’s decision to refuse the application, or part of it, is based on incorrect facts[31].
An application can only be made if the employer has notified the employee of the decision to refuse the application (or part of it) on appeal. The employee MUST therefore go through the appeals process.
The complaint must be brought within three months of the date of notification of the decision on appeal[32].
If an employment tribunal finds that the complaint is well founded, it must make a declaration to that effect and may:
make an order for reconsideration of the application;
make an award of compensation to be paid by the employer to the employee.
The amount of any compensation is to be what the tribunal considers to be just and equitable but must not exceed8 weeks pay[33], with the amount of a week’s pay being subject to the statutory cap, currently £380[34].

Complaints in respect of a failure to hold an application or appeals meeting / failure by employer to notify employee or decision in respect of application / decision on appeal

An employee may make a complaint to an employment where the employer:
fails to hold an application meeting within 28 day of receipt of the application;
fails to notify the employee of its decision within 14 days of such a meeting;
fails to hold an appeal meeting within 14 days of receipt of an appeals notice;
fails to notify the employee of its decision within 14 days of an appeals meeting[35].
The complaint must be brought within three months beginning on the date on which the breach was committed[36].
If the Tribunal finds that the complaint is well founded it must make a declaration to that effect and may:
make an order for reconsideration of the application;
make an award of compensation to be paid by the employer to the employee[37]. Such compensation is to be what is the Tribunal considers just and equitable[38] but is subject to a maximum of eight weeks pay[39], with a week’s pay being capped at the statutory maximum, currently £380[40].

Detriment and dismissal in respect of the making of an application

Right not to suffer a detriment

An employee has the right not to suffer any detriment by any act or deliberate failure to act by the employee’s employer done on the ground that the employee-
made or proposed to make a s63DF application;
exercised or proposed to exercise a right conferred on the employee under s63F (employer’s duties in relation to an application);
brought proceedings against the employer under s63I (the proceedings listed above);
alleged the existence of any circumstance which would constitute a ground for bringing such proceedings[41].
If an employee has been subject to a detriment they may make a complaint to a tribunal under S48(1) ERA 1996. Such a complaint must be brought before the end of three months beginning with the date of the act or failure to act to which the complaint relates[42]. If the tribunal finds that the complaint is well founded than the tribunal shall make a declaration to that effect, and may make an award of compensation, the amount of compensation being such as the tribunal considers just and equitable in allthecircumstances having regard to (a) the infringement to which the complaint relates and (b) any loss which is attributable to the act, or failure to act, which infringed the complainant’s right[43].

Unfair Dismissal

Similarly an employee will be regarded as unfairly dismissed for the purposes of Part 10 ERA 1996 where the reason or principal reason for the dismissal is that the employee[44]:
made or proposed to make a s63DF application;
exercised or proposed to exercise a right conferred on the employee under s63F (employer’s duties in relation to an application);
brought proceedings against the employer under s63I (the proceedings listed above);
alleged the existence of any circumstance which would constitute a ground for bringing such proceeding.
Similarly, in a redundancy situation, if one of the reasons listed above was the reason or principal reason for which the employee was selected for dismissal, then, provided that the reason or principal reason for dismissal was redundancy and it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held a position similar to that held by the employee and who have not been dismissed by the employer, then the employee will be regarded as unfairly dismissed for the purposes of Part 10 ERA 1996.
There is no need for an employee to have one year’s qualifying service to bring either such complaint[45].
The remedies are the usual remedies for unfair dismissal.

Complaints in respect of the right to be accompanied

Failure of employer to comply with the right to be accompanied[46]

An employee may present a complaint to an employment tribunal if his employer has failed or threatened to fail to comply with the right to be accompanied.
Such a complaint must be brought within three months beginning with the date of the failure or threat.
If the complaint is held to be well-founded, the tribunal must order the employer to pay compensation to the worker of an amount not exceeding two weeks’ pay, subject to the statutory cap, currently £380.

Right not to be subject to a detriment in respect of the right to be accompanied[47]