Training: the right to request time off

New rights for employees to request flexible working hours for training come into effect from 6 April. But many employers are still unaware of the changes, says Daniel Thomas.

New rules giving employees the right to request time off work for training come into effect in a week’s time – yet many employers are unaware of these changes. More than one-fifth of employers (21%) surveyed by IRS in December and January were unaware of the new regulations (see box below).

Under the new rules, which come into force on 6 April, employers with 250 or more staff will have to “seriously consider” a formal request from employees with at least 26 weeks’ service for time away from their core duties to undertake training. This will be extended to smaller employers in April 2011.

The government has deliberately tried to model the training legislation on the right to request flexible working, according to Selwyn Blyth, employment partner at Pinsent Masons. “There was a lot of cynicism when flexible working was announced, but it has been successful, a classic law with a ‘light touch’,” he says.

 


Skills

The training can be accredited, leading to the award of a recognised qualification, or unaccredited, helping the employee develop specific skills relevant to their job, workplace or business.

There is no limit on the amount of time employees can request, but the employer does not have to pay for the training or pay them for the time spent training, although it can choose to do so. Compensation for breach of the regulations is limited to up to eight weeks’ pay, capped at £380 per week.

What is unclear is the type of training that may be covered. Staff can request to undertake any training they think will improve both their and the employer’s business performance – but Blyth warns that this could create conflict. He says: “An employer might argue that some ‘soft skills’ might not directly improve the performance of the business, but it doesn’t seem that the employee has to prove that the training will improve their effectiveness.”

Within 28 days of receiving a valid request, the employer can accept the request and inform the employee of their decision in writing, or meet the employee to discuss their request. Within 14 days of that meeting, the employer should inform the employee of their final decision in writing. If needed, the employer can ask the employee for more information to support their request.

The employer may only refuse outright an employee’s request for time to train for one of a set of specified business reasons: for example, if the training would not improve the performance of the business, if the burden of additional costs were too great, or if the employer was unable to reorganise work among existing staff.

An employee can appeal a refusal in writing within 14 days of receiving the employer’s written notice refusing their request or part of their request.








Employers unperturbed by legislation



An IRS survey of 55 employers, conducted in December and January, revealed that 78% were aware of the new legislation, with 21% unaware.

An open question revealed that employers’ views on the proposed changes fell into three separate camps: those that were neutral; negative; or positive. However, most respondents fell into the ‘neutral’ camp, remaining unperturbed, as they were already providing employees with ample training opportunities and had an inclusive approach to development.

A few said issues might arise if requests related to personal career development, but should such problems occur, they were confident they would be able to demonstrate a good business reason for refusal.

This was illustrated by a quote from a public sector employer with 650 staff: “I feel we will have to use the ‘good business reason for refusal’ a lot as we have a large number of professionally qualified staff who see development as being for their own career/CV and therefore not always linked to business need.”

However, a few employers believed the new legislation would have a positive effect in that it could increase the profile of training in the organisation.


 Source: IRS

Grounds for an appeal may include challenging a fact that the employer gave as evidence for rejecting the request.

Or, they may wish to highlight something the employer wasn’t aware of when rejecting the application, such as that another member of staff is now willing to cover the hours the employee wishes to train. There are no restrictions on the grounds for this appeal.

The employer must act within 14 days of receiving the employee’s appeal notice. If the employer decides to accept the appeal, it should write to the employee setting out the same information as is required when accepting an initial request.

If the employer does not accept the appeal, it must arrange an appeal meeting, at which the employee has the right to be accompanied. This must be held within 14 days of the date the employer received the appeal notice.

Decision

If the employer’s decision is still to refuse the request, it must send the employee a dated, written notification including the grounds for the decision and why the grounds apply in these circumstances. The time limit for arranging an appeal meeting or notifying the employee of the employer’s decision on the appeal can be extended, with the employee’s consent.

The employer must not treat an employee detrimentally or dismiss them for a reason relating to their request for time to train. In addition, employers should note that rejecting a request for time to train could give rise to a discrimination claim – a point that may cause concern, according to Blyth.

While most employers will be broadly supportive of the new law, they are “scared” that it could be used as part of a sexual discrimination claim, he says.

Pointing to similar cases that cited failure to allow flexible working to female employees as part of a discrimination claim, Blyth warns: “You might see a clever lawyer concocting a discrimination claim if a woman in a low-paid, low-skilled job is refused training. It’s another stick to beat the employer with if the relationship has broken down.”

Burdensome

While the legislation will not apply to smaller employers until April 2011, the Federation of Small Businesses has warned that it could prove burdensome and over administrative.

Gagandeep Prasad, solicitor at Charles Russell, urges businesses not to panic. “There is also no right to be paid during the time off, even if it is granted, so employers are unlikely to face a flood of applications,” she says.

To minimise the administrative burden, employers that routinely grant time off for training should consider having a policy that encourages employees to make requests for time off informally to a line manager or HR department before a formal request is made, advises Susan Fanning, employment partner at DLA Piper.

“In many cases, the request may be uncontroversial and it would be a waste of both employee and management time to go through the formal statutory process,” she adds.

Employers unperturbed by legislation

An IRS survey of 55 employers, conducted in December and January, revealed that 78% were aware of the new legislation, with 21% unaware.

An open question revealed that employers’ views on the proposed changes fell into three separate camps: those that were neutral; negative; or positive. However, most respondents fell into the ‘neutral’ camp, remaining unperturbed, as they were already providing employees with ample training opportunities and had an inclusive approach to development.

A few said issues might arise if requests related to personal career development, but should such problems occur, they were confident they would be able to demonstrate a good business reason for refusal.

This was illustrated by a quote from a public sector employer with 650 staff: “I feel we will have to use the ‘good business reason for refusal’ a lot as we have a large number of professionally qualified staff who see development as being for their own career/CV and therefore not always linked to business need.”

However, a few employers believed the new legislation would have a positive effect in that it could increase the profile of training in the organisation.







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