Time off for training

Introduction and eligibility

Introduction

From 6 April 2010 employees in organisations that have 250 or more employees have been given the right to make a request in relation to study or training. This request is not limited to seeking time off for training but is designed to encourage employees to ask for any type of study or training that would improve their work effectiveness and thereby benefit the organisation they work for.

This is in addition to the existing right for young employees aged 18 and under who are entitled to specific provisions for time off for training depending on certain criteria.

his guide will look at who is eligible to have support for training and how an employer can ensure it meets its obligations correctly.

Eligibility

The right to make a request in relation to study or training can only be made by employees with more than 26 weeks’ continuous service. Employee shareholders have no right to make such requests

Only one valid request can be made in any period of 12 months and the request must be submitted in writing (including email). The written request must be dated and contain the following information:

A statement that it is a statutory request in relation to study or training
Details of any previous application including the date made and how it was submitted (e.g. by letter or email)
The content of the proposed study or training programme (“the training”)
The location of the training and the name of the provider
The timescale of the training
Who would supervise the training (if applicable)
Details of any qualifications that may be achieved
How the employee thinks the training would help him/her to improve and thereby improve the performance of the organisation.

Types of request

If the employee does not submit an adequate application and further information is required the employer can seek more details before considering the request. However if the application is not in writing and doesn’t contain the relevant details then it need not be considered by the employer. Where this is the case, the employer should let the employee know that it considers the application to be invalid and the reasons why (Letter requesting further information re request for training).

An employer may reconsider a request which is submitted within 12 months in the following circumstances:

if the original training was cancelled; or
if the employee could not attend due to unforeseen circumstances; or
where a request was withdrawn (rather than rejected) because it was invalid.

Whilst requests commonly include an application for time off the scope of requests that can be made can cover the following:

Part time or day release attendance at college
On the job training facilitated by the employer
External courses of varied duration
E-Learning and distance learning programmes
Payment for tuition fees and associated direct costs (e.g. examination fees)
Allowing the employee to work part time to be able to undertake a degree course
Asking the employer to put together a training programme for the employee.

Applications do not have to be limited to accredited courses which lead to a qualification; requests can be made for training which assists the employee in developing relevant skills to assist them in their job role or the organisation’s activities. The application can also encompass more than one type of study or training.

The training need not be confined to a specific college or at the employer’s premises but could include programmes at the employee’s home (distance learning), delivered by a training provider and can be either in or outside the UK. The programmes do not necessarily have to be supervised.

There is no obligation on an employer to pay for any training although many do in recognition of the value of the enhanced skills and contribution which may be made by the employee. Where an employer contributes to the cost of the training consideration should be given to a asking them to sign a training agreement. Such an agreement can require an employee to reimburse the employer the cost, or some of the cost, of the training in the event that they leave employment within a specific period of time.

If time off is granted it also may be possible to get agreement with the employee that they will make up some or all of the time granted or even work flexibly to accommodate any disruption. Agreement to any changes to terms and conditions must be expressly given by the employee.

Considering requests

An employer is not obliged to grant a request made for study or training but they do have a duty to consider valid requests and to process them using a specified procedure, unless the request is accepted immediately. If the request is accepted straightaway the employer must notify the employee of this within 28 days (Letter Accepting Request for Training No Meeting).

In all other cases the procedure to be followed is very similar to that for employees making a flexible working request.

Initially the employee must hold a meeting to discuss the matter with the employee within 28 days of receiving the request providing it is a valid one (Letter Acknowledging Receipt of Request for Training). The employee has the right to be accompanied at the meeting by a trade union representative or a fellow worker of their choosing. If the employee fails to attend the meeting without adequate reasons on more than one occasion, the employer will be entitled to treat their application as being withdrawn. This must be confirmed to the employee in writing (Letter Treating the Request as Withdrawn).

Meetings should be set up at a time and location which is convenient to both parties. However if the person who would normally conduct the meeting is absent due to annual leave or sickness the employer may hold the meeting within 28 days of their return but in any event must hold the meeting within a maximum time period of 8 weeks, appointing someone else if necessary.

The purpose of the meeting must only be for discussing the request but could include exploration of alternative routes to undertaking the training requested, if they may be equally effective or even better than those proposed by the employee. Where in-house provision exists this can also be offered as an alternative to using external providers.

Request responses

After the meeting the employer must provide a written response within 14 days of the meeting which must say whether the request is accepted or rejected or confirm any alternative arrangements which have been agreed. Where a request is refused or varied without prior agreement a right of appeal must be offered. If the request is refused an explanation of the business reasons for this must be included in the response.

If the request is agreed the employer must confirm this in writing and include the following in the letter:

the training subject
the location and timing of the training
the provider and supervisor (if applicable) of the training
the qualifications being undertaken (if applicable)
whether the employee will be given paid time off to undertake the programme
whether any changes to working hours have been agreed*
whether the employer will pay for any fees or associated costs

*agreed variations to contractual terms on a temporary or permanent basis must confirmed separately in writing.

If the request has been varied by agreement then the letter should set out the details of the variation and include evidence that the employee has agreed to the variation (Letter Accepting Request for Training).

If the decision is made to accept part of the request and refuse other aspects then this must be made clear in the response and reasons for the refusal set down as for the refusal letter. A right of appeal must be given for the aspects which have been refused (Letter Partially Accepting Request for Training).

Request refusals

If the request is refused the response must again be in writing and must contain the following information (Letter Rejecting Request for Training):

The business case for the refusal
How the reasons given relate to the individual request
Details of how to appeal.

The business case which can be used as a reason for refusal is limited and must fall within one or more of the following specified categories:

It would not improved the employee’s effectiveness within the organisation
It would not improve organisational performance
The costs are too burdensome
It would have a detrimental effect on meeting customer demand, quality or performance
The organisation could not reorganise staff to cover the work or recruit staff to cover
There is insufficient work during the periods the employee proposes to work
The organisation had planned structural changes.

It is not enough just to copy out one or more of the above reasons, the letter should include supporting information and evidence to show that the basis of refusal is factually correct. For example the cost of the training is too burdensome may be given as a reason where the organisation is in financial difficulties, the training budget for the year for all employees is limited to £5000 and the cost of the course which the training request relates to is £3000.

If an employee appeals they have 14 days from the date of the refusal in which to make an appeal in writing. The letter must set out the employee’s grounds of appeal and the employer has 14 days in which to hear the appeal. The outcome must then be given within 14 days of the appeal being heard. As with all appeals, a different manager with appropriate authority should hear the appeal. If the appeal upholds the decision to refuse the request full reasons must be given in writing (Letter Appeal Outcome Rejection Training Request).

All the timescales in this procedure can be extended by agreement between both parties. The employer should record any variations in writing and ensure the employee receives a copy.

Employees' responsibilities, enforcement and young persons

The employee’s responsibilities

If a request has been agreed and the employee fails to start the programme or complete the training they must inform their employer. This also applies if they undertake a different programme from that which was originally agreed. The employer may also ask the employee to let them know if there are any changes to the agreed programme they are undertaking such as the timing or content of the course.

Enforcement

Employees may ultimately bring a complaint to an Employment Tribunal if their request in relation to study or training is refused but this will only apply if the employer’s decision was based on inaccurate information or the employer failed to follow the prescribed procedure. It is not possible to complain just because the employee disagrees with the employer’s reasons for refusal unless the facts on which they are based are erroneous.

If the Tribunal finds in favour of the employee they can order a reconsideration of the employee’s request and/or award compensation of up to 8 weeks’ pay (capped at the current statutory rate).

Time off for training for young persons (16-18 year olds)

Young people are entitled to reasonable paid time off for study and training if they have left full time education without having attained a specified “standard of achievement”. This is to allow them the opportunity to undertake study or training to obtain relevant academic or vocational qualifications. The right applies to 16 and 17 year old employees and to 18 year olds who commenced their training before they were 18.

Agency workers who are permanent employees of the agency and who are supplied to an end user by the agency are also permitted to have time off. They must apply to their employer (i.e. the agency) to exercise this right.

Young persons

Those who are deemed not to have reached the “standard of achievement” are those who have left school without obtaining the following:

Five GCSE subjects at grades A to C
Three SQA Standard Grades at grades 1 to 3
One level 2 intermediate level GNVQ or GSVQ
One NVQ or SVQ at level 2
One BTEC First Certificate (Edexcel Foundation)
One BTEC First Diploma (Edexcel Foundation)
City and Guilds Diploma of Vocational Education at intermediate level
16 SQA credits (8 at intermediate 2 or above and the rest at intermediate 1) where the units are on the basis of one per 40 hour SQZ National Unit or National Certificate module or SQA short course and pro rata National Units or National Certificate module

It also includes those who are currently undertaking training as follows:

One GCE A level (grades A to E)
One GCE AS level (grades A to E)
One Advance Level GNVQ or GSVQ (level 3)
One SQA Higher Grade (A to C)
One CVSYS (grades A to C)
One NVQ or SVQ (level 3).

What training is covered?

In order for a young person to quality for the right to time off the employee must undertake a “relevant” qualification course which should be an external qualification that either contributes to the standard of achievement set out above or would be likely to improve the employment prospects of the employee (either for the current employer or with a future employer).

The location of the training can be at the employer’s premises, at the agency (if applicable) or elsewhere.

There are no formal procedures laid down for the employee to made a request for the time off but they should be encouraged to apply for time off in plenty of time and giving the employer reasonable notice. They should also give the employer sufficient information to allow them to determine if the conditions stated above have been met and that the request is a reasonable one.

Similarly there are no fixed limits for the amount of time off which can be given, how often it will be taken or any conditions for taking the time off. However the request must be reasonable and take account of the requirements of the study programme being followed as well as having regard to the organisation’s circumstances including the effect of having time off. The employer has some discretion as to the amount of time off that is permitted, when the time off is taken and can, if relevant, impose reasonable conditions always having regard to the requirements of the training programme and the needs of the organisation.

For those employees who qualify for time off the right is for paid time off at their normal hourly rate. This is based on calculating what a week’s pay is (Guide to Calculating a Week’s Pay) and dividing it by the number of normal working hours in a week. Agency workers must be paid by the agency.

Complaints to tribunal

If an employer unreasonably refuses to grant an eligible young person time off for study or training or the employee has not been paid for the time off they can present a complaint to a Tribunal. They have three months in which to present their claim (from the date the time off should have been permitted or from when the time off was taken without pay). If successful the Tribunal will order the employer to pay what the employee would have been paid if they had been allowed the time off or the amount that is due for a failure to make payment. Employees who exercise their right for time off are also protected from suffering a detriment for exercising that right.