Study or training requests: overview

Rebecca McAlees of Lewis Silkin begins a series of articles on the right to make a request in relation to study or training with an overview. The right, which is often referred to as the right to "request time off for training", entitles employees to make a request to enable them to undertake a course of study or training, provided that their employer will benefit. 

Introduction

The right to make a request in relation to study or training was brought into effect by s.40 of the Apprenticeships, Skills, Children and Learning Act 2009, which added new ss.63D to 63K into the Employment Rights Act 1996. 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). The right came into effect on 6 April 2010 and applies to employees who work for employers that have 250 or more employees. From 6 April 2011, this right will be extended to employees of all employers. 

The right

The statutory right is for an employee to make an application "for the purpose of enabling [him or her] to undertake study or training". This has been widely paraphrased as a right to "request time off for training".  Indeed, government guidance (on the Business Link website) refers to the right as "the right to request time to train". Inevitably, many applications will entail a request for time off work, but the potential scope for applications is wider than this. Examples of requests that might be included in an application under the statutory provisions also include requests for:

• the payment of fees for a training course or course of study;
• the employer to provide training during working hours;
• the employer to devise and implement a personal development plan;
• a change in the employee's duties;
• a change to part-time work to enable the employee to complete a course of study; or
• an entitlement to work from home on the day of study or training.

To be valid, the request must be for a measure that will enable the employee to undertake the study or training.

In the event that an employer grants a request for time off for study or training, the employee has no right under these provisions to be paid for the time taken (unless the employer agrees to a request to pay him or her).

Qualifying for the right

The right to make an application in relation to study or training applies to employees (including part-time and fixed-term employees) with at least 26 weeks' continuous service.

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 required to consider only one application from an employee in any 12-month period, unless the employee has been unable to start the study or training that was the subject of an earlier application because of circumstances outside his or her control or he or she withdraws an earlier application, which was mistakenly submitted too early after a previous application, when making the current request.

The nature of the study or training

To come within the remit of the statutory provisions, the study or training does not need to lead to a formal qualification. However, it must be to improve the employee's effectiveness in the employer's business and the performance of the employer's business.

A potential example is a foreign language course at a local college one afternoon per week, to be taken by a manager in an international organisation, on the ground that it will improve his or her effectiveness at corresponding with colleagues in different countries and result in reduced translation costs for the employer.

If the study or training will not improve the employee's effectiveness in the employer's business and the performance of that business, the request is invalid. Whether this test has been met will frequently be a matter for construction between employers and employees.

Employer's duty to consider requests

Employees have no automatic right to have their request granted. However, employers are obliged to give serious consideration to each valid request. The legislation achieves this by prescribing a procedure for dealing with applications and the grounds on which applications can be rejected.

The procedure prescribed by the legislation for the making of, and responding to, a request in relation to study or training mirrors the procedure for flexible working requests. In essence, the procedure entails a written request from the employee, meetings between the employer and employee within set time frames and at which the request should be considered, and the right for the employee to appeal against the employer's decision.

Employers can refuse an employee's application on one or more of a number of grounds, which closely reflect the grounds of refusal of flexible working requests. Further details of these and the procedure for making and dealing with requests in relation to study and training will be covered in the next article in this series.

It is open to employers to grant all, part or none of a request. Employers should document their thought processes when dealing with a request so that they can establish that they have given it serious thought. For example, in the case of the manager above, if the employer wished to reject the request on the ground that the proposed training would not improve the employee's effectiveness or the performance of its business, it might investigate (and note) how often the manager corresponds with non-English-speaking colleagues, and the costs and time consumption of the translation process, so that it can demonstrate that it has considered the request.

Next week's topic of the week article will look at the procedure for the right to make requests in relation to study and training, and will be published on 14 June.

Rebecca McAlees (rebecca.mcalees@lewissilkin.com) is an associate in the Employment and Incentives Department at Lewis Silkin.

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