The right to make a request in relation to study or training

From 6 April 2010, employees in organisations with at least 250 employees will be able to make a request in relation to study or training and will be entitled to a meeting with their employer to discuss the request, and to be given reasons for any refusal. In this article we look in detail at the legal requirements surrounding this deceptively simple principle. 

On this page:
The legislation behind the right to make a study or training request
Who has the right to make a request in relation to study or training?
One study or training request a year
The nature of the study or training request
Formal requirements of a study or training request
Employer's duties on receiving a study or training request
Grounds for refusal of a study or training request
Appeal against the refusal of a request in relation to study or training
Variation by agreement
Withdrawal of the study or training application
Remedies
Detriment and dismissal
Failure to start the study or training
Conclusion

The legislation behind the right to make a study or training request

The new law providing the right to make a request in relation to study or training is made by the Apprenticeships, Skills, Children and Learning Act 2009. Section 40 of the Act inserts a new part 6A on study and training into the Employment Rights Act 1996 (ss.63D to 63J). New provisions are also inserted into the provisions in the Act on unlawful detriment (s.47F) and unfair dismissal (s.104E) in relation to an application in relation to study or training.

Several sets of Regulations have been made: the Employee Study and Training (Eligibility, Complaints and Remedies) Regulations 2010 (SI 2010/156); the Employee Study and Training (Procedural Requirements) Regulations 2010 (SI 2010/155); and the Employee Study and Training (Qualifying Period of Employment) Regulations 2010 (SI 2010/800).

Who has the right to make a request in relation to study or training?

The right to make a request in relation to study or training is available to employees only. The qualifying period of service before employees acquire the right is 26 weeks. The right does not extend to members of the armed forces and s.63D(7) of the Employment Rights Act 1996 excludes from the right a number of categories of employee. These are:

• anyone of compulsory school age (school age in Scotland);
• anyone who has ceased to be of compulsory school age and who is not yet 18 who is obliged to participate in education or training under the terms of the Education and Skills Act 2008 (or who has reached 18 and is completing a course in education or training for these purposes);
• anyone aged 16 or 17 who qualifies for the right to time off for study or training under s.63A of the Employment Rights Act 1996; and
• agency workers.

Under the Apprenticeships, Skills, Children and Learning Act 2009 (Commencement No. 2 and Transitional and Saving Provisions) Order 2010 (SI 2010/303), the right initially applies in respect of employees of employers with an average of 250 or more in their workforce over the previous 12 months. The right will be extended to the employees of small employers with fewer than 250 employees on 6 April 2011.

One study or training request a year

An employee is entitled to submit only one request every 12 months under the right to make a request in relation to study or training (s.63F(1)(b) of the Employment Rights Act 1996). If an employee submits a fresh request within 12 months of the previous one, the employer is entitled to take no action in respect of it. However, there are circumstances in which a fresh request can be submitted less than a year after a previous request and these are set out in reg.3 of the procedural Regulations. Essentially they are where the employee did not in fact start the agreed study or training, either because of some emergency or circumstance beyond the employee's control, or because the training was cancelled by the employer, the trainer or the body facilitating or providing the training - provided that the cancellation was not due to the employee's conduct.

If an employee mistakenly submits a fresh training request less than 12 months after the previous one, the employee will be able to submit another request when the 12 months has expired, provided that, when making the application, the employee states that the earlier request was submitted too early by mistake and withdraws it (reg.3(4) of the procedural Regulations).

The nature of the study or training request

Although this right is commonly referred to as a right to request time off for training, it is not limited to requests for time off. The nature of the request is set out in s.63D(3) of the Employment Rights Act 1996, which provides that the application must be made "for the purpose of enabling the employee to undertake study or training (or both)". Most requests made under this provision will involve time off, but an employee may make a request that the employer organise, provide or pay for training. However, the right to make a request does not lead to any obligation on the employer to agree to the request.

Valid requests under the new right would include:

• a request to be given one day off a week to attend a further education college;
• a request that the employer facilitate "on the job" training in relation to particular work;
• a request that the employer allow the employee to work part time while he or she completes a degree course;
• a request that the employer pay the employee's college fees; and
• a request that the employer design and implement a comprehensive training programme for the employee.

There is, however, one important limitation. The request can relate only to study or training that both improves the employee's effectiveness in the employer's business and improves the effectiveness of the employer's business (s.63D(4)). Training or study that is purely for the employee's personal development is not covered. Thus a request from an employee currently working in banking that he or she be given time off to undergo teacher training would not be a valid request.

Of course, whether or not study or training fulfils these requirements may be a contentious issue. It is easy to envisage circumstances where an employee feels strongly that the employer's business would benefit from, for example, his or her being trained in complaint handling skills, but the employer is sceptical about this. If the employee is right, the request will be valid; but if the employer is right, it will not. In such a case, the issue may turn on the employer's reasons for refusing the request (see below). However, if the employer has refused to comply with any of the formal requirements for handling a valid request, it may be that a tribunal would need to determine whether or not the training would in fact have improved the effectiveness of the employee and the employer's business, to ascertain whether or not the statutory right to make a request in relation to study or training was triggered.

Formal requirements of a study or training request

The employee's request must be put in writing (which includes email) and be dated (reg.4 of the eligibility Regulations). It must also state that it is a request in relation to s.63D of the Employment Rights Act 1996 (s.63D(5)). There is no requirement that the study or training in question must lead to any sort of formal qualification (s.63E(3)). In fact, subject to the requirements in relation to the effectiveness of the training set out above, there is no limitation on the type of study or training requested. It may be formal or informal, undertaken with or without supervision and may take place at the employer's premises or in any other location (s.63E(2)). The application may also relate to more than one description of study or training (s.63E(1)(b)).

However, the request must be specific. Under s.63E(4), it must give details of:

• the subject matter of the training;
• where and when it would take place;
• who would provide and supervise it; and
• to what qualification, if any, it would lead.

The request must also explain how the employee thinks the training would improve his or her own performance and the effectiveness of the employer's business.

Where there has been one, the request must also give the date of the employee's last statutory study or training request, and the method by which it was submitted (reg.3 of the eligibility Regulations).

Employer's duties on receiving a study or training request

Although the procedure provided below sets out a detailed timetable for action, it is open to the employee and employer to agree a variation in the timetable under which a request is considered (reg.14 of the procedural Regulations). Any such agreement must be recorded in writing by the employer, be dated and set out details of the agreed extension, and be given to the employee.

When an employer receives a valid request, it must either agree to the request (notifying the employee of this in writing within 28 days) or invite the employee to a meeting to discuss it (reg.4 of the procedural Regulations). The meeting must take place within 28 days of receipt of the request - although where the person who would normally consider the request is off sick or on annual leave when the application is received, the 28-day period begins on the day that he or she returns to work, or 28 days after the application is received, whichever is sooner (reg.15 of the procedural Regulations). The time and place of the meeting must be convenient for both the employer and the employee (reg.13 of the procedural Regulations).

On making a reasonable request, the employee has the right to be accompanied by a colleague of his or her choice at the meeting to discuss the request (reg.16 of the procedural Regulations). Unlike the right to be accompanied at disciplinary and grievance hearings, there is no right for the employee to be accompanied by a trade union representative (although there is nothing to stop the chosen fellow worker also being a trade union official or a trade union learning representative).

The employee's companion may address the meeting and confer with the employee during the meeting, but may not "answer questions independently of the employee". This is a puzzling phrase and differs from the formulation found in relation to discipline and grievance meetings, which prevents the companion answering questions on behalf of the employee. Litigation on the meaning of this phrase is, however, unlikely.

The companion is entitled to paid time off to accompany his or her colleague at the training request meeting. If the companion is not available at the time specified by the employer, and the employee proposes an alternative time that is within seven days of the date originally proposed by the employer, and convenient for both employer and employee, the employer must postpone the meeting to the new time proposed.

A failure to comply with the employee's right to be accompanied creates a standalone tribunal claim, which can result in compensation of up to two weeks' pay (reg.17 of the procedural Regulations). Both the employee and the companion have the right not to be subjected to a detriment in relation to exercising the right to be accompanied in this context (reg.18 of the procedural Regulations).

Apart from the right to be accompanied and the need for the meeting to be "convenient", there are no further requirements with regard to the meeting itself. The only additional specification is that the employer must notify the employee of its decision in respect of the request within 14 days of the meeting (reg.5 of the procedural Regulations).

Regulation 6 of the procedural Regulations sets out the details that the employer must give in notifying the employee of its decision. The decision must be dated and in writing (which includes email). Where the employer has granted (or partly granted) the employee's request, the notice must set out the subject of the study or the training, where and when it will take place, who will provide or supervise it, and to what (if any) qualification it will lead. In addition, it must specify how the direct costs of the training will be met. The notice must also make clear whether or not the employee will be paid for any time spent engaged in the study or training, and set out any changes that will be made to the employee's working hours to allow him or her to take part in the training.

Where the employer is refusing (or partly refusing) the employee's request, the notice must specify on which of the permissible grounds (see below) the employer is relying, give a "sufficient" explanation of why those grounds apply and give details of the appeal procedure.

Grounds for refusal of a study or training request

Section 63F(7) of the Employment Rights Act 1996 sets out a list of permissible grounds for refusal. The employer must show that it "thinks" that one of the permissible grounds for refusal applies in respect of the request.

The first ground for refusal is that the proposed study or training would not improve the employee's effectiveness or the performance of the employer's business. As we saw above, if either of these conclusions is correct, the request is invalid in any event. However, this provision allows the employer to rely on its own appraisal of whether or not the employee's effectiveness or the performance of the business will be served by the request, irrespective of whether this appraisal is correct.

Thereafter, the permissible grounds for refusal are exactly the same as the permissible reasons for refusing a flexible working request under s.80G of the Employment Rights Act 1996, namely:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to reorganise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the periods the employee proposes to work; and
• planned structural changes.

The Secretary of State may also make Regulations specifying further grounds for refusing a request.

The range of permissible reasons for refusal was originally conceived in relation to an employee proposing to change his or her working pattern, and may have less relevance if the employee is merely seeking some commitment from the employer in relation to training. In practice, employers are likely to rely on a combination of seeing no benefit to the business of the training and the burden of additional costs that the request would entail. Where the request is essentially a request for time off, the other reasons may be relevant.

The employer therefore has a wide range of grounds of refusal from which to choose, and no obligation to substantiate its objection or show that it is in any way reasonable. The only limitation on the employer's discretion is that an employee can bring a claim if the refusal is based on incorrect facts (s.63I(1)(b)). Thus, if the employer refuses an application because the training would cost £2,000, the employee can bring a tribunal claim showing that, in fact, the training would cost only £1,000.

Appeal against the refusal of a request in relation to study or training

If the employer has refused the employee's request to any extent, the employee must be offered a right of appeal. The employee exercises this right by sending the employer a written notice of his or her wish to appeal, which must be dated and set out the grounds of the appeal (reg.9 of the procedural Regulations). The notice of appeal must be given within 14 days of the employer giving notice of its decision (reg.8). The employer must arrange an appeal hearing within 14 days of the employee's notice and give a decision within a further 14 days following the appeal (regs.10 and 11). The notice of the outcome of the appeal must contain the same details as required in relation to the notification of the outcome of the original hearing (see above).

There are no specific requirements in relation to who should conduct the appeal or how the appeal should be run, except that the right to be accompanied applies to the appeal hearing just as it does to the original meeting, and the time and place of the appeal meeting must be convenient to both the employer and employee.

Variation by agreement

It is open to the employer and the employee to agree that a request can be dealt with by the employer granting the request in a varied form. Where this happens, under reg.7 of the procedural Regulations, the employer's notice of the decision must make clear the agreed variation and be supported by written evidence of the employee's agreement to the variation (presumably a minute of the meeting or copies of appropriate correspondence). The notice setting out the variation must also specify whether or not the employee will be paid for time spent undertaking the agreed study or training, set out how the tuition fees or other direct cost of the study or training will be met, and make clear whether or not any changes have been agreed to the employee's working hours to accommodate the study or training.

Withdrawal of the study or training application

Under reg.19 of the procedural Regulations, the employer must treat the study or training application as having been withdrawn where the employee has notified it, either orally or in writing, that he or she is withdrawing the request. The application will also be treated as having been withdrawn where the employee fails, without good reason, to attend a meeting or appeal meeting in relation to the request more than once, or, without reasonable cause, refuses to provide the employer with the information it needs to assess whether or not it can agree to the application.

Unless the employee has provided written notice of the withdrawal of the application, the employer must confirm the withdrawal in writing.

Remedies

Under s.63I of the Employment Rights Act 1996, an employee can bring a claim on the basis that the employer has failed to follow the procedural requirements of the Regulations, for example to hold a meeting to discuss the request or notify the employee of the outcome of the meeting. An employee can also bring a claim on the basis that the employer refused the application on incorrect facts. A complaint in relation to the reason for the refusal of a request can be brought only if the procedure has been completed and the employee's appeal has been rejected. The normal three-month time limit applies in respect of such claims.

If the tribunal upholds a claim, it will make a declaration to that effect. It may order the employer to reconsider the employee's request and may also make an award of compensation (s.63J). Regulation 6 of the eligibility Regulations sets the limit on any award of compensation at eight weeks - the same as for a breach of the right to request flexible working. This is subject to the statutory limit on a week's pay.

There is no provision for any separate remedy where the employer has agreed to the employee's request but does not fulfil that commitment. However, depending on the circumstances, the outcome of the request procedure may be a binding contractual agreement between the employer and the employee, which can be enforced in the normal way in the courts and tribunals.

Detriment and dismissal

Under s.47F of the Employment Rights Act 1996, an employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the employer for making, or proposing to make, an application in relation to study or training, or for challenging any alleged infringement of that right.

The amount of compensation that may be awarded to an employee in such circumstances is such amount as the tribunal considers just and equitable in all the circumstances, having regard to the infringement to which the employee's complaint relates, and any loss attributable to that infringement (including expenses incurred by the employee and any loss of benefit that he or she might reasonably be expected to have had but for that infringement).

The dismissal or selection for redundancy of an employee for exercising the right to make a request in relation to study or training will be automatically unfair (and there is no requirement for the employee to have the usual one-year qualifying service) (ss.104E and 108).

Failure to start the study or training

Under s.63H of the Employment Rights Act 1996, where the employer has agreed to the employee's request, the employee must inform the employer if he or she fails to start or complete the agreed study or training, or changes the study or training to be undertaken. Regulation 20 of the procedural Regulations provides that this must be done within 14 days of the failure or change, and that the employee's notification to the employer must be in writing and dated.

Conclusion

What the Government appears to be aiming for is a situation in which employers become used to discussing seriously with employees their training needs. The legislation is aimed at nudging employers in that direction by creating a legal framework for such discussions to take place. Whether or not the discussions actually comply with every detail of the statutory procedure is perhaps not what is most important. What really matters is whether or not the new procedure prompts employers to take training requests seriously and genuinely engage with employees who want to benefit from study or training.