Employment e-Brief – the right to request time off for training

Bryony Goldspink, employment law solicitor

If you are an employer with 250 or more employees, you should be aware that your employees have a relatively new right to request time off to undertake study or training.

This will be extended to all employers, regardless of size, from 6 April 2011. This is, however, subject to review by the new government.

What are the conditions of entitlement?

• Employees must have at least 26 weeks’ continuous service.
• The training must be for the purpose of improving the employees’ effectiveness at work and the performance of their employer’s business, although it need not lead to a formal qualification.
• The right does not apply to certain employees, including school age children and agency workers. There are also limitations in relation to employees aged 18 and under (although they may have a separate right to time off for training).

How is this right exercised?

An employee may (generally) only make one application to an employer in any 12 month period. The application must be in writing and include specific information.

What is the procedure?

The procedure to be followed by employers closely mirrors the existing flexible working application procedure, which includes holding a meeting with the employee to discuss their application, giving written notice of the decision (including which one of the specified reasons is relied upon in the case of refusal) and providing an appeal.

Reasons for refusal

Requests for time off for training can only be refused for one or more of the statutory reasons. These reasons include the cost burden, inability to reallocate work, effect on ability to meet customer demand, or the employer’s belief that the training would not improve employee effectiveness or business performance.

How much time off can be taken?

The amount of time off that can be taken for training is at the discretion of the employer. Employers may grant all, part or none of the time off requested by the employee.

Is there a right to payment?

There is no right to payment for the time off, however there could be national minimum wage implications as time spent carrying out training approved by the employer during normal working hours counts as working time for national minimum wage purposes.

Summary of the obligations on employers

Employers are required to consider all valid requests seriously and may only refuse a request if one of the specified business reasons apply.

A failure to consider a request or a failure to follow the correct procedure could result in compensation of up to eight weeks’ pay being payable to the employee who made the request.

Treating an employee less favourably as a result of having made a request could result in further liability and it is automatically unfair to dismiss an employee because a request has been made by them.

For further information about the employee right to time off for training, the national minimum wage implications or the procedure that should be followed, please contact Bryony Goldspink (bryony.goldspink@gordonsllp.com) or any other member of the employment team.