Have you ever wanted to brush up on your Spanish skills?  Learn advanced skills in Excel? Improve your presentation skills?  With effect from 6 April 2010, employees who work in an organisation with 250 or more employees and who meet certain qualifying criteria will have the statutory right to request time off work for study or training, and employers will have a reciprocal obligation to consider that request and can only reject applications if the reason for rejecting the application falls within certain specified grounds.  This will apply to all organisations regardless of size after April 2011.

So, does that mean that a secretary can request time off work to learn the art of sushi making?  Fortunately not.  The legislation provides that employees will only have the right to request time for certain types of training.  It must be something which would improve the employee’s effectiveness in the employer’s business and improve the performance of the employer’s business.  Sushi making classes are therefore unlikely to qualify, but something like Spanish classes could qualify if the employee is required to use Spanish as part of their job.

Qualifying employees (broadly those who have at least 26 weeks’ service with their employer) will have the right to make a statutory application to their employer to allow them to undertake study or training, whether in the form of “on the job” training provided by their employer, or separately.  This will be known as a “section 63D application” or a “time to train” application.  The application will need to state that it is a section 63D application, explain what the proposed training is, where and when it would take palace, who would provide/supervise it and what qualification (if any) it would lead to.  As above, the application will also need to explain how the proposed study or training will improve the employee’s effectiveness and the performance of the business. Note that there is no right to be paid for time spent training, although many employers will presumably agree to this to recognise the benefit to the business of the agreed training.

An employer may refuse a request for “time to train” only where they think that certain permissible business reasons apply.  This includes where the employer thinks that the training would not improve the employee’s effectiveness in the employer’s business or improve the performance of the business; or that the study or training would impose a burden of additional costs on the business; or that there would be an inability to re-organise work amongst the remaining staff.  For those familiar with the right to request flexible working, the statutory framework looks very similar.  Meetings should normally be held to discuss the employee’s proposal before a decision is taken (and note that employees will have the statutory right to be accompanied to such a meeting).

An employee will have the right to appeal against a decision not to allow the training.  The appeal must be in writing and must set out the grounds of appeal.  The employer should then normally hold a meeting and notify the employee within another 14 days whether or not the appeal has been successful and state the grounds for its decision.  Ultimately an employee will be able to bring a complaint in an employment tribunal if an employer rejects an application based on incorrect facts, or because the correct procedure was not followed.  A Tribunal could require an employer to pay up to 8 weeks’ pay or require the employer to re-consider the request by following the process correctly.  Employees will also have the right not to be treated detrimentally or dismissed because they made a request for time off to train.

Employers should familiarise themselves with these new statutory provisions so that they will be ready to deal with any requests which they receive.  It remains to be seen whether employees will actually exercise this new statutory right or if it will be a bit of a damp squib.  In our experience most large employers already offer relatively good training for their employees, so in practice it may not be until April 2011 when these rights extend to all employees that we will start to see requests being made.  The key advice to employers is really to consider any request properly, and to ensure that if the request is rejected, the rationale for it is based on one of the permitted grounds.


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