Time off for training requests must be considered by employers under new rules

New legislation gives staff the right to request time off for training, and employers have been urged to put procedures and policies in place, says Daniel Thomas.

New laws giving employees the right to request time off for training have now come into force.

Under the Apprenticeships, Skills, Children and Learning Act 2009, which came into force on 6 April, employers with 250 or more staff 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 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. Employees can request to undertake any training they think will improve both their and the employer’s business performance.

There isno limit on the amount of time off employees can request, and the employer is not obliged to pay for the training, or pay the employee for the time spent training, although it can choose to do so. Compensation for breach of the regulations is limited to eight weeks’ pay, capped at £380 per week.

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 with the employee to discuss their request – and within 14 days of that meeting, inform the employee of their final decision in writing. If needed, the employer can ask the employee for more information to support their request.

Reasons for refusal

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: the training may not improve the performance of the business; the burden of additional costs could be too great; or the employer may be unable to reorganise work among existing staff.

Tom Richmond, skills adviser at the Chartered Institute of Personnel and Development, says getting procedures in place is vital. “It is not an overly complicated process, but it is still essential that employers follow the guidance to make sure that employees are satisfied with the way they have handled their request, regardless of the final decision by the employer as to whether the training goes ahead,” he says.

Right to request time off for training: at a glance

  • Employers must either accept or arrange a meeting with the employee making the request for time off for training within 28 days.
  • The employee requesting time off for training can be accompanied to the meeting by another colleague or union representative.
  • The employer must make the decision to accept or refuse the request for time off for training within 14 days. It is possible for employers to partially accept a request.
  • If the employer refuses the request, the employee has a right to appeal.

Grounds for refusal may include:

  • Training not relevant to business needs or not applicable to the role of the employee
  • Suitable training not available
  • Detrimental effect on the ability of employer to meet customer demand or provide quality customer service if training request is accommodated
  • Inability to reorganise or re-allocate work to colleagues or recruit temporary staff to accommodate training
  • Where the training is in conflict with a planned structural change.
Susan Fanning, employment partner at law firm DLA Piper, advises HR departments to focus on training and creating policies to ensure compliance. “Employers will need to train line managers on how to recognise and respond to a statutory request for time off to train,” she says. “Employers may wish to consider putting in place a formal policy so that both employees and managers are aware of their rights and responsibilities.”

HR professionals should ensure that if line managers grant a request for time off to train, this is properly documented and the employee’s hours are reduced as a result, warns Luke Green, solicitor in the employment team at Halliwells law firm. “This is important because a reduction in hours will have an effect on pay and other benefits, and this should be well-documented to avoid disputes at a later date.”

Right to appeal

An employee can appeal a decision in writing within 14 days of receiving the employer’s written notice refusing, or partly refusing, their request. An employee might appeal because they want to either challenge a fact that the employer gave to explain why the business reason applies, or to bring to the employer’s attention something it wasn’t aware of when rejecting the application – such as another member of staff now being willing to cover the hours the employee wishes to train, for example. 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.

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 their 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.

Guy Guinan, partner at Halliwells, says: “These procedural requirements appear to be the main pitfall for employers as there is a wide scope to reject the request and, unlike the flexible working regulations, there would not be the obvious threat of a sex discrimination complaint.”

Cause for confusion?

While smaller employers have another 12 months to prepare, Abigail Morris, employment adviser at the British Chambers of Commerce, says the law has the potential to be “quite confusing” for them, particularly with how it ties in with legislation protecting part-time workers.

“If an employer has someone who works six hours a week and then requests two hours off for training, the inclination is not to let them do that, but they will be caught out,” she says. “Employers will have to be very careful in their justification.”

But Graham Eveleigh, training and development director at catering company BaxterStorey, insists that only those “who are not truly committed to delivering training” to their teams will struggle to comply with the legislation.

“No changes will be required,” he says. “Our deployment of training very much reflects the ethos of this legislation, and it will simply sit alongside our current practice.”

Graham White, director of HR at Westminster City Council, says the legislation will help keep training and development at the forefront of staff and manager thinking, but warns there will be “pockets of cynical outdated managers” in some organisations who will see this as alien to their current way of working.

“This legislation compels them to engage with their staff and build positive relationships of trust,” he says. “If they fail to do that, they leave themselves open to legal challenge and deserve all the criticism they will attract.”

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