On 6 April 2010 employers in England, Wales and Scotland who employ 250 or more employees must comply with new regulations granting eligible employees the right to request to take time off work to undertake study or training (or both).
The regulations set out which employees will be eligible to the right, the procedure that an employer must follow upon receiving a request from their employer, the grounds for refusing a request and the consequences of failing to follow the procedure.
There are no restrictions on the type of training or studies that an employee can apply for, although the employee will need to demonstrate that it will improve their effectiveness at work and that it will also improve the performance of your business.
There is also no limit on the amount of time or the amount of study or training that an employee can request. Employees can ask to undertake more than one piece of training in a single request for time to train.
The studies or training may be:
Subject to the terms of their employment contract, employees will not have the right to be paid for the time spent whilst they are training and/or studying - options include the employee working flexibly to make up the time or taking unpaid time off. You will need to consider National Minimum Wage and working time regulations, as there are different rules around whether training time is treated as working time for these purposes.
Similarly, you are not obliged to pay for the cost of the training/study course.
An employee should make their request in writing, ensuring that it is dated and states that it is being made under 'section 63D of the Employment Rights Act 1996'.
Their request must also provide the date on which the employee's last request (if any) was submitted to you and how it was delivered and include the following details of the proposed study or training course:
Within 28 days of receiving the employee's request, you should either:
An employee can appeal against a refusal within 14 days of receipt of your rejection letter.
Within 14 days of receipt of the employee's appeal letter, you must either notify the employee in writing that their appeal has been successful or hold a meeting with the employee to discuss his/her appeal.
Within 14 days of the appeal hearing, you must write to the employee notifying him/her of the outcome of their appeal.
The timescales mentioned above can be extended by agreement.
An employee can only submit an application once every 12 months. However, you must ignore this requirement and allow the employee to submit an additional application within the 12-month period, if at the time of making the current request, the employee notifies you that he/she wants to withdraw their earlier application because he/she:
An employee may withdraw their request, either orally or in writing, at any time before you have notified him/her of your decision. If you receive an oral request to withdraw, you must confirm it in writing to the employee.
If an employee withdraws their request, it will still count as a request received under the statutory right.
When considering an employee's request, you should attempt to foresee circumstances in which you may need to later withdraw an agreement if you accept the employee's request. This should then be agreed with your employee and also confirmed in writing to him/her as part of your written acceptance of their request.
You may refuse all or part of an employee's statutory request for time to study or undertake training on one or more of the following grounds:
If you accept an employee's request, you must write to him/her stating:
If you accept only part of an employee's request, you must write to him/her stating which part of the request is agreed and provide the same information in respect of the agreed part.
If, as a result of your discussions with the employee, an agreement is reached to meet their study or training request which is different (in whole or in part) to the details set out in the employee's request, then you must write to him/her confirming the details of the agreement and provide written evidence of the employee's agreement to it. This agreement should usually be drafted with the employee at the meeting where it is discussed.
If an employee's request is refused, you must write to him/her identifying the statutory grounds for refusal, explaining why you think the grounds apply in the circumstances and, where applicable, confirm the internal appeal procedures.
If you refuse only part of an employee's request, you must write to him/her stating which part of the request is rejected and provide the same information in respect of the rejected part.
An employee is entitled to be accompanied at such meetings by a work colleague or a trade union representative whom you currently employ.
The companion can address the meeting and confer with the employee during it, but may not answer questions independently of the employee.
The meeting should take place at a time and location that is convenient to you and the employee.
If the employee's companion is unable to attend the meeting, the employee can request it to be rearranged at a mutually convenient time for all attendees, which should be no later than seven days after the date originally proposed for the meeting.
You are entitled to regard an employee's request to be withdrawn if he/she fails to attend a meeting to discuss their request or appeal on more than one occasion, without reasonable cause.
The employee must inform you in writing if he/she:
An employee may only make a complaint to an employment tribunal where either:
An employment tribunal does not have power to question your business reasons for refusing an employee's request, but it can examine the facts on which the business reason was based to see if they are correct. However, if a complaint is made jointly with other legislation, such as discrimination legislation, the employment tribunal may examine how the request was considered.
A successful complaint for failing to observe the statutory procedure or invalid reasons for refusal will result in a maximum award of 8 weeks' pay capped at the same maximum rate for unfair dismissal awards (currently £450 per week).
There is a separate award of up to two weeks' pay if you did not allow the employee to be accompanied at a meeting.