Study or training requests: frequently asked questions

Bridget Green of Lewis Silkin concludes a series of articles on the right to make a request in relation to study or training with some frequently asked questions that look, among other things, at the eligibility requirements for making study or training requests and the potential scope of requests, which goes beyond time off for study or training. 

What do the provisions relating to study or training requests include?

The provisions relating to study or training requests are set out in new ss.63D to 63K of the Employment Rights Act 1996, which were added by s.40 of the Apprenticeships, Skills, Children and Learning Act 2009. Detailed provisions are set out in 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). 

From 6 April 2010, the provisions give qualifying employees the right to make a request "for the purpose of enabling [them] to undertake study or training". Although this is widely understood to mean time off for study or training, the potential scope of the right is broader and requests may be made, for example, for employers to pay for training or provide their own training, or for adjustments to be made to hours to accommodate study or training. Employers are not obliged to agree to requests but must give them serious consideration through a prescribed procedure set out in the legislation. The provisions also include the qualifying conditions for the right to make a request, the requirements when making requests, the permitted grounds for refusing requests, and the remedies available to employees if their employer breaches the provisions.

Who qualifies for the right to make study or training requests?

Employees who work for employers with 250 or more employees may make requests in relation to study or training under the statutory provisions. From 6 April 2011, the right will be extended to employees of all employers. Only employees with at least 26 weeks' continuous service with their employer are entitled to make a request.

The right does not apply to: agency workers; individuals of compulsory school age; employees aged 16 and 17 who are obliged to participate in education or training under the terms of the Education and Skills Act 2008 (or who have reached 18 and are still pursuing a course for these purposes); and employees aged 16 and 17 who qualify for the right to time off for study or training under s.63A of the Employment Rights Act 1996.

Employers are obliged to consider only one application from an employee in any 12-month period, unless circumstances beyond the employee's control prevented him or her from undertaking previously requested training.

(See Study or training requests: overview in this series for more details of the right to request and the eligibility requirements.)

How should employees make study or training requests?

Employees who wish to make a study or training request must do so in writing (email is acceptable). A request must include information prescribed by the legislation, namely:

• the date of the application;
• a statement that the application is a statutory request in relation to study or training;
• the subject matter of the study or training;
• where and when the study or training will take place;
• who will provide or supervise the study or training;
• to what qualification (if any) the study or training will lead;
• an explanation as to how the employee thinks that the study or training will improve both his or her effectiveness in the employer's business and the performance of the employer's business; and
• whether or not the employee has made a previous application, and if he or she has, the date of that application and how it was submitted.

How should an employer deal with a study or training request from an employee who has insufficient service to make a request under the statutory provisions?

An application in relation to study or training made by an employee with less than 26 weeks' continuous service will not come within the scope of the legislation. Therefore the employer is under no legal obligation to consider the request, although it may do so if it wishes. It is good practice for an employer that intends to reject a request on the ground of the employee's insufficient service to notify the employee in writing of the reason for the rejection.

What kind of study or training qualifies under the provisions?

For an employee's request in relation to study or training to come within the statutory provisions, the study or training must be for the purpose of improving the employee's effectiveness at work and the performance of the employer's business. In many cases it will be a matter for construction between the employee and employer whether or not the training in question meets these requirements. There is no requirement for the study or training to lead to a qualification.

What are an employer's obligations when an employee makes a request under the statutory provisions?

Although they are not obliged to agree to requests made under the study or training provisions, employers must seriously consider them. The legislation provides for a procedure for dealing with requests and prescribes the grounds on which they can be rejected. The procedure comprises a meeting, a written decision from the employer, and a right of appeal, with an appeal meeting. Employees are entitled to be accompanied by another of the employer's workers at meetings. Employers and employees must comply with procedural steps within specified time frames, although these can be extended by agreement. (See Study or training requests: procedure in this series for more details of the statutory procedure.)

On what grounds can employers refuse study or training requests?

Employers can refuse a study or training request only on one or more business grounds set out in the legislation. The grounds are:

• the fact that the proposed study or training will not improve the employee's effectiveness in the employer's business and the performance of the business;
• the cost burden of the proposed study or training;
• a detrimental effect on the ability to meet customer demand;
• an inability to reorganise work among existing staff;
• an inability to recruit additional staff;
• a detrimental impact on quality;
• a detrimental impact on performance;
• the insufficiency of work during the periods that the employee proposes to work; and
• planned structural changes.

Are employees entitled to be paid for time off for training agreed under the study or training provisions?

No. Employees are not entitled to be paid for time off for training that has been agreed under the statutory provisions unless their employer agrees to pay them.

Do employers have to pay for employees' training?

Employers are under no obligation to pay for study or training that is the subject of a successful request under the provisions. However, they may choose to do so.

What should an employer do if it already has its own policy and procedure for dealing with requests in relation to study or training?

Employers that have existing policies and procedures in place for dealing with study or training requests can continue to follow them but, for the sake of simplicity, may choose to amend them to fit the statutory procedure. However, if an employee makes a request under the statutory procedure, the employer must follow that procedure when dealing with the employee's request, regardless of other procedures that it may have previously adopted.

What remedies are available to an employee whose employer fails to consider a request under the study or training provisions?

An employee whose employer fails to consider properly a valid request under the study or training provisions can bring a claim to an employment tribunal. Claims may be brought on the grounds that the employer:

• failed to follow the procedural requirements set out in the legislation; or
• made the decision to refuse all or part of the request on incorrect facts, and failed to correct the error on appeal.

If the claim is successful, the employment tribunal may award maximum compensation of eight weeks' pay, subject to the statutory limit on a week's pay, and/or order the employer to reconsider the employee's application.

Employees have the right not to be subjected to a detriment because they have made a request under the legislation. An employment tribunal that finds that an employee has suffered a detriment can make an award of compensation of an amount that it considers just and equitable in all the circumstances. If an employee is dismissed for making a request under the provisions, the dismissal will be automatically unfair and the employee will not need to have completed one year's service to bring a claim of unfair dismissal.

Next week's topic of the week article will be the first in a new series on reasonable adjustments under the disability discrimination provisions and will be published on 5 July.

Bridget Green (Bridget.Green@lewissilkin.com) is a trainee solicitor in the Employment and Incentives Department at Lewis Silkin.

Further information on Lewis Silkin LLP can be accessed at www.lewissilkin.com.