Member Article

The Apprenticeships, Skills, Children and Learning Act 2009 (the "Act") received Royal Assent on 12 November 2009. Among other things it introduces a new statutory right for employees to request time off from work to study or train.

From 6 April 2010 the new right only applies to employers with 250 or more employees. It is expected to apply to all other employers from 6 April 2011.
The way that the new right is structured is similar in many ways to the current right to request flexible working: employers will have a duty to properly consider any request for time off to study or train but will be able to refuse such a request on the various business grounds specified in the legislation.

It is important to note that the Act does not require an employee to actually be given time off work by their employer to study or train. It simply confers the right for the employee to ask for time off and imposes an obligation on the employer to properly consider any such request.

Who can make such a request?
Only employees (i.e. not an agency or other type of worker) will be able to make a request for time off if they have been employed for at least 26 weeks and have not made another such request for time off to study or train within the last 12 months.

An application must be because the employee wishes to undertake study or training in order to improve their effectiveness in their employer's business and improve the performance of that business generally.

However, it need not be intended to lead to a recognised award or qualification. The study or training may be undertaken in the workplace or elsewhere (e.g. at their home) and may be undertaken with or without supervision.

An employee will be required to make a written application to their employer setting out certain prescribed information. They must then be invited to attend a meeting with the employer to discuss their application.The employer will have to notify the employee in writing of their decision within 14 days of the meeting and the employee will have a right of appeal.The employee must be allowed to have a work colleague or trade union representative accompany them at all meetings under the statutory procedure.

Where such a request is granted there is no requirement on employers to give the employee paid time off. Payment arrangements for time off for study and training are therefore a matter for agreement between the parties. However, employers should be careful to implement any pay policy in respect of such time off consistently in order to avoid discrimination claims.

Protection for employees
An employee will be able to bring a claim in the employment tribunal that an employer's decision to refuse their request was based on incorrect facts, or was refused on an impermissible ground, or was in breach of the procedural requirements.

A tribunal will be able to order the employer to reconsider the request and make an award of compensation of up to a maximum of eight weeks' pay (subject to the statutory cap).

Employees will also be protected against detriment and dismissal on the grounds that they have made a request for time off to train.

Action points for employers
Employers should consider drafting a policy dealing with the new right to request time off for training and ensure any staff handbooks are updated accordingly. HR and managers should receive training on dealing with requests so that they are fully aware and equipped to deal with the new right.

 

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