Mark Higgins Partner at Ralli Solicitors
In November 2009, the Apprenticeships, Skills, Children and Learning Act was given the Royal Assent. As the lengthy title suggests, the Act contains a broad range of provisions, many of which relate to children and young people below the age of 18. However, section 40 of the Act contains provisions to benefit a much wider group of workers and hence, as an employer, you need to be aware of it.
This section provides the legal basis for a new right of employees to request time to train whilst in employment. It achieves this by way of amendment to the existing Employment Rights Act 1996, creating a new section 63D - J. At first glance, the provisions appear to give employees a right to demand time to train. However, as we shall see below, the lengthy list of reasons an employer can give to refuse a request significantly reduces its impact.
The right applies, subject to eligibility criteria, from 6 April 2010 for undertakings employing 250 people or more and from 6 April 2011 for all other undertakings.
The right extends to employees (not agency workers) who have been in continuous employment for at least 26 weeks as at the date the employer receives the request. The right to request time to train is not open-ended. The training must have the purpose of improving the employee’s effectiveness in the employer’s business and the performance of the employer’s business.
Where training is eligible, there is no prescribed format. It can be delivered in-house or remotely e.g. at a learning centre or even at home. Training may lead to a formal qualification or simply be a means of developing specific skills relevant to the employer’s business. Note that whilst an employee has no right to be paid under the new rules, employers must bear in mind the National Minimum Wage Regulations which would apply in some instances.
The general rule is that the employer only need consider one request from a particular employee within any 12 month period (working back from the date of the latest request). This is clearly intended to stop abuse of the right by a nuisance employee who makes repeat/multiple requests. There are certain instances where a previous request must be ignored, however. These relate to withdrawals of previous invalid requests and where previously arranged training is either cancelled by the training provider or not started by the employee due to circumstances beyond his or her control.
Leaving aside issues regarding frequency, in order to be valid, an employee must set out the request in writing. Although there is no prescribed form, the request must contain prescribed information. If some of the required information is missing, the request is invalid and you needn’t consider it. The employee must show that the proposed study or training would improve his or her effectiveness in the employer’s business and the performance of the employer’s business.
Where a valid request is received, the employer must comply with prescribed time limits for responding. Where the employer wishes to accept the request, there is no need for a meeting. However, where the employer is undecided or wishes to refuse the request, a meeting with the employee must be called before the decision is made. Where a meeting is called, the employee has a right to be accompanied in the same way as for disciplinary and grievance meetings.
In certain cases, an employer may require additional information from the employee before a decision is made. He or she has the right to make such a request and any failure on the employee’s part to provide the information sought may entitle the employer to treat the employee’s request as withdrawn. Where this happens, the employer must notify the employee in writing.
As stated above, if the legislation started out with the intention of having teeth, these have been ground down to a large extent by the comprehensive statutory grounds for refusing a valid request. These appear very wide-ranging and include inability to re-organise work among existing staff, planned structural changes and the burden of additional costs to name but a few.
It will be interesting to view the extent to which the employment tribunals will be willing to review/interfere with an employer’s decision. Note that although employment tribunals will not have direct jurisdiction to question business reasons given for an employer’s refusal, they will be able to examine the facts upon which the business case is given and may have indirect jurisdiction to question them in any related claim of unlawful discrimination.
Where a request is refused, the employer must notify the employee in writing and offer the right to an appeal within 14 days of receiving the written decision. Note that there are no restrictions upon what can and can’t constitute a valid ground of appeal. Thus, an appeal may centre around a challenge to the particular reason for rejection given or around new facts may have emerged since the request was considered. Again, where the employer intends to uphold the appeal, there is no need for a meeting. However, where the employer is undecided or intends to reject the appeal, a meeting must first take place.
For large employers with the resources to invest in training and development of staff, the new legislation is unlikely to have much impact. Many of the anticipated requests for training will already fall into existing programmes. Eccentric requests can be dealt with either by negotiation within the formal meeting or by refusal in reliance upon one of the statutory reasons for rejection. It is the smaller scale employers who are more likely to feel the impact of the new law since it is they who are more likely to lack the procedural systems or fall into the trap of failing to deal with a request properly or worse still, not dealing with it at all.