Right to time off for study or training

The new paid time-off right for underqualified, working 16- or 17-year-olds.

From 1 September 1999, an employee who is aged 16 or 17, is not in full-time secondary or further education and has not attained a prescribed "standard of achievement" (see below), will be entitled to take reasonable paid time off work to study or train towards a "relevant qualification" (see below ). So will such an employee who is for the time being supplied by his or her employer to another person ("the principal") to perform work in accordance with a contract between the employer and the principal. An 18-year-old employee who is studying or training towards a "relevant qualification" will also be entitled to take the time off if he or she began the relevant course before turning 18. The study or training may take place on the employer's (or the principal's) premises or elsewhere.

That right will be conferred by ss.63A-63C of the Employment Rights Act 1996 ("the ERA"), to be inserted into that Act by ss.32 and 33 of the Teaching and Higher Education Act 1998 ("the THEA") on 1 September1, and (in Northern Ireland) by the Employment Rights (Time Off for Study or Training) (Northern Ireland) Order 1998 and Regulations made by the Department of Economic Development.

Standard of achievement

The "standard of achievement" that an employee who ordinarily works in England or Wales will not have attained to be entitled to take the time off is prescribed by reg. 3 of the Right to Time Off for Study or Training Regulations 1999 ("the Regulations")2, and includes the following:

  • grades A to C in five subjects in GCSE examinations;

  • one intermediate level GNVQ or one GSVQ at level 2; or

  • one NVQ or SVQ at level 2.

    Relevant qualification

    The study or training undertaken by an employee during the time off must lead to an academic or vocational qualification, awarded by one of the "awarding bodies" listed in the Schedule to the Regulations2 (whether acting alone or jointly with any other body), which would contribute to the attainment of the prescribed "standard of achievement" and be likely to enhance the employee's employment prospects (whether with his or her current employer or a future one). It follows that a qualification need not be related to the employee's work to be relevant.

    Amount and frequency of time off

    The amount of time off that an employee will be allowed to take, and the occasions on which and any conditions subject to which it may be so taken, will be those that are "reasonable in all the circumstances" having particular regard to the requirements of the employee's study or training, the circumstances of the employer's (or the principal's) business and the effect of the employee's time off on the running of that business.

    Payment for time off

    An employee who is allowed to take the time off will be entitled to be paid by his or her employer for it at "the appropriate hourly rate", calculated in accordance with s.63B(2)-(6) of the ERA, whose provisions are identical to those in respect of existing paid time-off rights such as the right to time off for antenatal care.

    The employer will not, however, be obliged to meet or contribute towards the cost of the particular course of study or training. If it decides to do so, it may subsequently seek to recoup all or a proportionate part of its outlay from the employee, if he or she does not complete the course or resigns within a given period after completing it, by relying on an appropriately worded clause in his or her contract of employment. The longer the interval between the employee completing the course and his or her resignation, the lower should be the amount required to be repaid by him or her and/or authorised to be deducted from his or her wages (see Neil v Strathclyde Regional Council3). There can be no guarantee, however, that such a clause will be enforceable.

    Enforcement of right

    An employee will be able to complain to an employment tribunal that his or her employer (or the principal) unreasonably refused to allow him or her to take the time off, or failed to pay him or her for it either at all or in full. If the tribunal upholds the complaint, it will make a declaration to that effect and will order the employer (or the principal) to pay the employee what he or she would have received had the time off been allowed, or the amount found to be owing to him or her.

    The limitation period will be three months from the day on which the time off allegedly should have been allowed, or was in fact taken, although the tribunal will have the same discretion to extend time as it would do were the complaint one of unfair dismissal.

    Additional protection

    Section 47A of the ERA, to be inserted into that Act by para. 10 of Schedule 3 to the THEA on 1 September1, gives an employee who is entitled to take the time off the right not to be subjected to any detriment other than dismissal by his or her employer (or the principal) because he or she took (or proposed to take) the time off or received (or sought to receive) payment for it.

    In addition, the time-off right will be a "relevant statutory right" for the purposes of s.104 of the ERA from 1 September1. A dismissal for asserting such a right in terms of s.104 is automatically unfair under that section.

    1 The Teaching and Higher Education Act 1998 (Commencement No.5) Order 1999, SI 1999/987 (C.27).

    2 SI 1999/986, available from the Stationery Office, price £2. The Right to Time Off for Study or Training (Scotland) Regulations 1999, SI 1999/1058 (S.76), apply in relation to any employee who ordinarily works in Scotland. They are also available from the Stationery Office, price £2.

    3 [1984] IRLR 14.