Time Off To Train

By

Nicola Newbegin

Introduction

Part of a drive to increase skills within the workforce

Aim was to promote greater dialogue between employers and employees in respect of training. 

Sources of law

• Mainly contained in Employment Rights Act 1996 and accompanying regulations:

• Eligibility, Complaints and Remedies Regulations

• Procedural Requirements Regulations

• Qualifying Period of Employment Regulations

Key points about the nature of the right

• Is a right to have a request for time off to train considered and for it only to be refused on certain grounds

• It is NOT an absolute right to time off to train

• It is limited to certain types of training, essentially those likely to benefit the employer’s business

• Employer does not have to cover costs or training nor pay employee for time spent training

•Who make an application?

Only employees who

•Have at least 26 weeks continuous employment

•Are not excluded employees.

Currently only applies to employers who employ at least 250 employees. Is currently to be extended to all employers from 6 April 2011, but is subject to consultation.

HOW IT WORKS IN PRACTICE

Making the request

• Type of training that can be requested

• Procedure for making such a request

 

Employer’s response to the making of such a request 

• no previous application within preceding 12 months

• hold a meeting within 28 days

• notify employee of outcome within 14 days of meeting

• information to be given if agrees to the request

•Information to be given if refuses the request

• Employee’s right to be accompanied

• Employee’s duties of request is granted

• Notification of changes

Grounds upon which an application may be refused

• Would not improve employee’s effectiveness or performance of employer’s business•Burden of addition costs•Ability to meet customer demand•Ability to reorganise work among existing staff•Ability to recruit additional staff•Impact upon quality•Impact upon performance•Insufficient of work during periods employee would work•Planned structural changes

Appeal process if application is refused

  Employee can appeal against decision not to grant application.

•Must appeal within 14 days, in writing, be dated and contain grounds of appeal• Employer must hold appeal meeting within 14 days•Employer must notify decision within 14 days of appeal meeting•If dismisses appeal, must state grounds for decision and contain sufficient explanation as to why those grounds apply.

COMPLAINTS TO AN EMPLOYMENT TRIBUNAL

Refusal of an application

Employee can make a complaint that :

•Employer has refused application other than on the grounds permitted

•Employer’s decision to refuse the application was based on incorrect facts

Procedure and remedies

Can only be made once appeals process completed.

Must be made within three months of decision on appeal.

If tribunal upholds complaint, it must make a declaration to that effect and may:

- make an order for reconsideration of the application

- award compensation up to a maximum of 8 weeks pay, capped at the statutory maximum, currently £380 per week.

Complaints in respect of a failure to hold a meeting / notify of the outcome An employee may bring a complaint to a tribunal that the employer has:

- failed to hold an application or appeals meeting - failed to notify the employee of the outcome. The complaint must be brought within three months of the breach. If it upholds the complaint, the tribunal must make a declaration and may make an order for reconsideration / award compensation capped at 8 weeks of £380.

Detrimental treatment in respect of the making of an application

An employee has a right not to suffer detriment on the grounds that the employee:

- has made or proposes to make a s63D application;- exercised or proposed to exercise a right in respect of the

making of an application;- brought proceedings under s64I;- alleged the existence of circumstances which would

constitute a ground for bringing such proceedings.

3 month time limit.

 

Unfair dismissal  Right not to be dismissed / dismissed on grounds of redundancy where the reason for dismissal / principal reason for dismissal is one of the four grounds listed above. No need to have one year’s qualifying service.

Complaints in respect of right to be accompanied

Can complain if employer has failed or threatened to fail to comply with the right to be accompanied. 

• Three months time limit •Capped at 2 weeks pay (subject to statutory cap, currently £380 per week)

 Right not to be subject to a detriment / be dismissed where reason / principal reason is that exercised or sought to exercise right to be accompanied or if accompanied or sought to accompany an employee at the employee’s request.

•One year qualifying period does not apply.•Extends to workers.

 

The Future of the Right

 • Currently due to be extended to all employers from 6 April 2011, BUT ;

 • Currently subject to consultation about its future. Outcome of consultation to be announced December 2010.

 

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