WITH effect from April 6, 2010, all companies with more than 250 employees have to allow their staff the right to take time off to undertake study or training.
With effect from 6th April 2011, this will be extended to all businesses.
Employees with at least 26 weeks of continuous service will be allowed to request time off for training if the purpose is improving their effectiveness at work and the performance of their employer’s business.
An employee is entitled to make one application in any 12-month period. This must be in writing, stating such matters as the type of training, including where and when it would take place, who would provide the training and how the training would improve the employee’s effectiveness and the performance of the employer’s business.
On receipt of a valid application, the company must hold a meeting with the employee within 28 days. The meeting would be to discuss the request and to try to agree on whether time off should be granted. If the company accepts the request, it must state the type of training that will be allowed, when it is to take place, whether any terms and conditions of employment will change, how the training costs will be met and whether the employee will be paid for time spent studying or training. It is important to understand that there is no statutory right for the employee to be paid while they are attending any training outside of work.
If the employer decides not to grant the request, it must do so on one of the specified grounds contained in the legislation. For example, a refusal could be on the grounds of detrimental effect on ability to meet customer need, detrimental impact on performance or inability to reorganise work among existing staff.
An appeal hearing must take place if the employee exercises this right and again, refusal of any request at the appeal stage must be on one of the 10 specified grounds contained in the Employment Rights Act 1996.
Employers should be aware that, while there is no right to payment for time off, time spent carrying out training during normal working hours will count as “time work” for the purposes of the calculation of the National Minimum Wage. Therefore, when calculating whether an employee is being paid minimum wage, account must be taken of any time off that they take to attend training.
If the employer fails to follow the statutory procedure outlined above or makes a decision to refuse all or part of the application without referring to one or more or the permissible grounds then an employee is entitled to bring a claim at the employment tribunal within three months of the application being refused.
It should be noted that if an employer does rely on a permissible ground it must be able to justify that decision – otherwise the employee may again have a right of action in the employment tribunal.
