In June 2008, skills secretary John Denham launched a consultation on a new legal right for employees to request time off from their day-to-day work duties to undertake training relevant for their role.
The consultation was prompted by the Leitch Review of Skills, which was published in December 2006 and called for an increase in achievement in skills. The report suggested that responsibility for this increase would be spread between the government, employers and employees.
Q When is it likely that this right will come into operation?
A Currently, the government anticipates that the right to request training will be implemented in 2010, when it proposes to make more than £1bn per year available to businesses to train their workforce through the Train to Gain scheme.
Q What legislation is the new right going to be part of?
A These measures are part of the Apprenticeships, Skills, Learning and Children Bill.
Q How should employers prepare for this?
A The right to request time off for training will be similar in procedure to that already in place for making and responding to requests for flexible working. It will apply to employees with more than 26 weeks continuous employment, which is intended to ensure that the right only covers employees with whom employers have developed a working relationship. The right will also extend to volunteers who are deemed to be ’employees’. Employers will need to ensure they have in place the appropriate policy to advise employees of their rights, and the procedure that they need to go through to make such a request.
Q What obligations will employers likely have?
A The obligations on employers will be similar to those currently set out in the flexible working legislation. Employers will be required to arrange a meeting with employees to discuss their request, allow the employee the right to be accompanied at the meeting – at this stage it is anticipated the individual allowed to accompany the employee is likely to be a friend, colleague or union learning representative – and seriously consider the employee’s request.
Q On what grounds will employers be able to refuse requests?
A The employer must seriously consider the employee’s request and will then be able to reject a request for time off work for training purposes for one or more prescribed business reasons. The training will need to be suitable to the employer’s business and appropriate for the employee in question in addition. The proposed prescribed reasons are:
- Relevance of training to business productivity and performance
- Suitable training not available
- Burden of additional costs
- Detrimental effect on ability to meet customer demand
- Inability to reorganise work among existing staff
- Detrimental impact on quality
- Detrimental impact on performance
- Insufficiency of work during the periods the employee proposes to work
- Planned structural changes.
Q How broad will the definition of training and scope of training likely be?
A The government’s proposals do not specify the length of the training, or whether it should be part of or outside the normal working day. The proposal is stated to be designed to prompt a serious discussion between employer and employee to benefit both parties. In line with the current legislation regarding flexible working requests, the government is proposing that employees will only be able to make one request in any 12-month period.
Q Is there anything else for employers to consider?
A One of the first questions most employers will be concerned about is the cost of any such training requests. The proposed legislation will not require employers to pay for the training, but many may choose to do so if it will benefit their business. The legislation is merely going to oblige the employer to “seriously consider” any request from employees for time off work to improve their job skills. Unusually, there are two proposed levels of appeal. First, as is usual, an appeal can be made internally within the organisation, but the second level will be to an employment tribunal. This is going to be a limited right of appeal but will relate to situations where an employer has failed to follow the correct procedure, for example. The tribunal will have the right to require employers to reconsider the application, which will involve additional management time and employees may be awarded compensation within defined limits. Such measures are no doubt intended to encourage employers to ensure that they follow the specified procedure and that requests are only rejected on a proper basis.
Jane Anderson, solicitor, Matthew Arnold and Baldwin