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Employment Rights – Applications to undertake study and training

Wednesday, January 20th, 2010

Summary
The right to apply to undertake study and training courses during employment becomes law for employees of large employers in April 2010, and employees of all employers in April 2011. The Regulations define the format of employee applications, the timetable that employers must follow when considering the applications, and the implications of agreeing to or rejecting the applications.

Detail

Starting 6 April 2010, employers with 250 or more employees will be required to consider applications made by employees to undertake courses of study or training that will improve their effectiveness in the employer’s business, or improve the performance of the employer’s business. The provisions will be extended to all employers from April 2011. The legislation has not, as yet, been introduced into Northern Ireland legislation.

The procedures are similar to those that apply to flexible working applications. However, employers are not required to follow the statutory procedures if they already have effective arrangements in place that achieve the same objectives. They may, for example, consider applications from employees who do not meet the statutory length of service condition, or who do not make an application in the prescribed format, or who make an application too soon after a previous one.

The Department for Business, Innovation and Skills (BIS) has now published guidance about the “time to train” provisions, on the Business Link website for employers and on the DirectGov website for employees. The following notes summarise the way in which employees must make their applications and how employers must respond.

Entitlement

Employees who qualify for this right must have at least 26 weeks’ continuous employment. There is no upper age restriction. However, excluded from the right are:

young people who are still of compulsory school age
*young people under age 18 who have the right to paid time off for study or training because they are under age 18, have finished full time secondary or further education but have not yet achieved a prescribed level of achievement, e.g. grades A* to C in five GCSE subjects (Employment Rights Act 1996, sections 63A to 63C)
agency workers
members of the armed forces.

* Between 2013 and 2015, this right to paid time off for study or training will be replaced in England by the obligation on young people aged 16 and 17 to participate in certain types of education or training if they do not have the equivalent of two Advanced Level qualifications. The exclusion will also apply to these young people. (Employment Rights Act 1996, sections 63D to 63K)

Applications

Employees must make a written application to undertake study and/or training. The study or training requested must have the purpose of improving

the employee’s effectiveness in the employer’s business, and
the performance of the employer’s business.

The application may be for one or more types of study or training and does not have to lead to a qualification. How the study or training would be undertaken is not rigidly defined and may, for example, be undertaken

on the employer’s premises, in the employee’s home or elsewhere
during working time or otherwise
with or without supervision by the employer or anyone else
within or outside the UK.

There is no prescribed format for applications but they must include the following information:

a statement that it is being made under the provisions of section 63D of the Employment Rights Act 1996
the following details 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
an explanation of how the employee thinks the proposed study or training would improve:
- the employee’s effectiveness in the employer’s business, and
- the performance of the employer’s business
the date of the application
the date and the manner (e.g. post, email) on which the employee’s last application (if any) was submitted.

Valid and invalid applications

An employer may refuse to consider an application if, on the day the employer receives the application, a period of less than twelve months has passed since an earlier valid application was made. BIS guidance suggests that an employee should be advised within 4 weeks if a request is invalid for this reason or because it does not contain the necessary information. The employee may then resubmit the application at the right time or with the errors corrected.

An employee may withdraw an application verbally or in writing, in which case it is still considered to have been a valid application, requiring a year to pass before another application can be considered. If an application is withdrawn verbally, the employer should confirm it in writing.

When making an application, an employee may ask that an earlier request, submitted within the previous 12 months, be ignored. The employer must ignore an earlier application if one of the following three situations is relevant:

where the employee indicates that an earlier request, which was submitted less than 12 months after an earlier one, was submitted in error and wishes to withdraw it
where training, to which the employer had agreed, was cancelled, other than as a result of the employee’s conduct in relation to the study or training
where agreed training never started, for a reason outside of the employee’s control.

Timetable

On receiving a valid application, the employer may consider it and accept it, in which case written confirmation must be given to the employee within 28 days.

Alternatively, if the employer intends to reject the application in whole or in part, or has counter-proposals, one or more meetings should be held with the employee. The employer may, for example, be agreeable to funding the training but not to it being carried out in working time, or prefer to provide the training in-house, or know of options that would better suit the employee. Following the meeting(s), the employer must inform the employee of the decision within 14 days.

An employee may bring a work colleague to the meeting(s), e.g. a union learning representative, (or even, at the employer’s discretion, a non-employee if the employee has special needs). The companion may not speak for the employee but may address the meeting and confer with the employee. A companion who is an employee of the employer is entitled to time off with pay to perform such duties.

If the employer requires additional information in order to consider the application, the employee may be asked for further details. If the employee does not respond, the application may be treated as having been withdrawn. Similarly, if an employee fails to attend a meeting more than once without reasonable cause, the application may be treated as withdrawn. The employee should be notified in writing.

If the person who normally handles applications is away when one is received, the period before a meeting must be held may be extended for up to 28 days, starting on the day the person returns to work.

There is no specified timetable for meetings and appeal meetings, but dates for meetings must be agreed mutually and put in writing. Meetings must be rearranged if the employee’s chosen companion cannot attend.

Reasons for rejection

After considering the application and holding meetings as necessary, the employer may decide to reject some or all of the application. Rejection may only be for one or more of the following statutory reasons:

that the proposed study or training to which the application, or 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 the employee proposes to work
planned structural changes.

Communicating the decision

If the employer accepts the employee’s proposals, or if alternative arrangements have been agreed at meetings, the decision must be confirmed in writing, specifying

the subject of the study or training
where and when it will take place, and over what period
who will provide or supervise the training
what qualification (if any) the training will lead to
how the training time will be taken – eg whether it will be paid, unpaid, or whether the employee will work flexibly
whilst undertaking the training
how the costs of the training will be met
any conditions which, if the employee failed to meet them, the agreement would be withdrawn.

If the agreement involves a change to the employee’s terms and conditions, e.g. a reduction in the employee’s working hours because the training time will not be paid, established internal procedures should be followed.

If the employer rejects some or all of the employee’s proposals, the written decision must specify

the business reason(s) for which the application is being rejected
why the business reason, or reasons, apply in the employee’s circumstances
the appeal procedure
the date of the notice.

Appealing the employer’s decision

The employee may appeal against the employer’s decision to reject part or all of the application on any reasonable grounds. An appeal meeting must be held within 14 days and, where possible, heard by a different manager than the one who considered the initial application. The appeal decision must be issued in writing within 14 days, specifying the grounds for the decision and why they apply in the circumstances.

If the employee is still dissatisfied with the employer’s decision, efforts should be made to resolve the matter informally or by means of the employer’s grievance procedure. Beyond that, a complaint could be made to an employment tribunal if the decision was based on incorrect facts or the proper procedures were not followed, but not simply because the employee disagrees with the decision.

An employment tribunal can order the employer to pay an award of up to eight weeks’ pay, plus a further two weeks’ pay if a companion was not permitted to attend meetings, and/or require the employer to reconsider the request using correct procedures.

Employees are protected, as usual, from detrimental treatment or dismissal as a result of making an application or exercising any right under the arrangements.

Further information:

From the employer’s perspective – Consider time for training

From the employee’s perspective – Time to train: time to learn new skills