Study or training requests: procedure

Abi Frederick of Lewis Silkin continues a series of articles on the right to make a request in relation to study or training with a look at the statutory procedure for making and dealing with requests. Under the procedure, employers must hold a meeting to discuss a request relating to study or training unless they approve the request in the first instance. 

Introduction

The statutory right to make a request in relation to study or training came into effect on 6 April 2010 (see the previous article in this series for an overview of the right, details of who qualifies and the type of study or training to which the statutory provisions apply). Employers are required to consider requests (although not necessarily grant them) under a procedure that closely resembles the procedure that must be used to deal with requests for a flexible pattern of work.

Some employers will already have procedures in place that employees can use to make requests in relation to study or training (irrespective of the advent of the statutory procedure), and they may choose whether or not to amend those existing processes to fit the statutory procedure. However, if an employee makes a request under the statutory procedure, the employer must follow that procedure regardless of other procedures that it has previously adopted.

Making a request

For an application in relation to study or training to come within the statutory provisions (and impose on the employer the duty to consider the request under the statutory procedure) the employee must apply in writing (email is permissible) and include certain information with the application, 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.

To avoid confusion, and the need for employees to resubmit requests, employers may choose to put in place a standard form for employees to submit a request in relation to study or training, as many employers have done for flexible working requests.

Considering a request

As with flexible working requests, employers must seriously consider requests in relation to study or training and follow a set procedure when dealing with requests and giving their response. However, it is up to employers whether they grant a request in full, in part or not at all. A request can be refused only on one or more specified business grounds. 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.

These grounds mirror those for refusing flexible working requests (with the exception of the first ground).

Granting a request following the initial application

If, on the basis of the employee's application, the employer decides to agree to the request in full, it should notify the employee of its decision, in writing, within 28 days of receiving the request. No further procedural requirements apply.

Requirement to hold a meeting

If the employer does not agree to the request in full or wishes to discuss the request further before deciding on its response, it must hold a meeting with the employee within 28 days of receiving the request. The time and location of the meeting must be convenient for the employee and employer. The employee is entitled to be accompanied at the meeting by a companion who also works for the employer. If the employee's companion is unavailable, the employer must postpone the meeting to a mutually convenient time proposed by the employee that is within seven days of the day originally proposed. At the meeting, the employer and employee can discuss the request in more detail and alternative solutions.

Following the meeting, the employer must notify the employee of its decision, in writing, within 14 days. If the employer decides to grant the request its notification must include details of:

• 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;
• whether or not the employee will be paid for the time spent in study or training;
• whether or not any changes will be made to the employee's working hours to accommodate the study or training; and
• how the study or training costs will be met.

Where the employer and employee agree at the meeting that the employee's training needs can be met in a different way from that originally requested by him or her, the employer must confirm, in writing, the details of that agreement, including evidence of the employee's agreement to it.

If the employer decides to refuse the request it must state:

• the business grounds for refusal that apply;
• a sufficient explanation of why those grounds apply; and
• details of the appeal procedure.

If the employer decides to agree to part of the employee's request it must specify to which part it agrees and which part it refuses.

Appeals

If the employee is unhappy with the outcome of the procedure, he or she has the right to appeal against the decision. The employee has 14 days in which to appeal. The grounds of appeal must be set out in writing and the appeal must be dated.

The employer has 14 days either to grant the request (in which case it must notify the employee of the same information as that required when a request is granted after the initial meeting), or to hold another meeting with the employee (preferably conducted by a different manager) to discuss the appeal. As with the initial meeting, the employee is entitled to be accompanied by a fellow worker at the appeal meeting. Within 14 days of the appeal meeting, the employer must notify the employee of its decision. The notification of the decision must be in writing and dated. If the employer rejects the appeal, its notification must state the grounds for its decision with a sufficient explanation as to why those grounds apply. If it grants the request following the appeal meeting, the employer must include in its notification the same information as that required when a request is granted at an earlier stage in the process.

Extension of time limits

The statutory process may seem rigid. However, it is open to employers and employees to agree extensions of the time limits. Agreements to extend time limits should be recorded in writing by the employer and dated, and specify the period to which the extension relates and the date on which it will end. A copy of the employer's record should be given to the employee.

Remedies

Employees can bring a claim to an employment tribunal that their employer failed to follow the statutory procedure, or refused a request based on incorrect facts. Claims must be brought within three months of the breach. If the claim is successful, the tribunal can order the employer to reconsider the application to which the claim relates and/or award compensation of up to eight weeks' pay (or a maximum of two weeks' pay for breach of the right to be accompanied). A week's pay is capped at the statutory limit on a week's pay (currently £380).

Next week's topic of the week article will be a case study on the right to make requests in relation to study or training, and will be published on 21 June.

Abi Frederick (abi.frederick@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.