Since April 2010, employees of large organisations (of 250 or more employees) have been entitled to request unpaid time off work to undertake relevant training or study. The right was due to have been extended to all employees of small and medium-sized businesses ("SMEs") with effect from April 2011. However, following consultation with businesses and employee groups, the Government announced in July 2011 that it was taking more time to consider the right and would not be extending it to SMEs for the foreseeable future.

How does the right work?

To be eligible to apply for time off for training, employees must have been employed continuously for at least 26 weeks on the date they make their request. Certain groups, including agency workers, are excluded and an employer is only obliged to consider one request per employee in a 12-month period.

The purpose of the training must be to improve the employee's effectiveness in the employer's business and the performance of the employer's business. It may be an accredited or unaccredited programme.

The right is similar to the right to request flexible working, in that it is a procedural right rather than a substantive one. The application must satisfy certain requirements and the employer is then under certain procedural obligations (as set out in procedural regulations), which mirror the flexible working application procedure. In particular, within 28 days of receiving a request, the employer must hold a meeting (at which the employee is entitled to be accompanied) to discuss the application with the employee and then provide the employee with the written decision within 14 days of the meeting. It may be the case that a successful request will also involve notification of changes to an employee's terms and conditions of employment, for example if the employee will be unpaid during the training period.

The employer must consider all requests seriously and can only refuse the application if it considers that one of the business-related reasons, which are prescribed by the legislation, apply. These include the burden of additional costs, inability to reorganise work among existing staff and that the proposed study or training would not in fact improve the employee's effectiveness or the performance of the employer's business. The employee is entitled to submit a written appeal within 14 days of the employer's decision, whereupon the employer must either uphold the appeal in writing or hold a further meeting with the employee. The outcome of the appeal meeting must be notified to the employee within 14 days.

As is the case with the right to request flexible working, the employee has no right to complain if a request is refused, although an employee can bring a complaint if the procedure has not been followed or if the employer has made the decision based on incorrect facts. If the complaint is upheld by the Tribunal, the employer may be ordered to pay compensation of up to 8 weeks' pay. A week's pay has a statutory limit, which is currently £400.

The future of the right and extending the right to employees of SMEs

In August 2010, Skills Minister John Hayes launched a consultation on the future of the right to request time to train and whether it should be extended to SMEs. This was part of a review of all pipeline regulations that had been planned by the previous government and recognised the mixed reception for the right from businesses, trade unions and employees.

As expected, the Government stated that responses to the consultation revealed an extremely polarised position between those supporting the right as a way to encourage individuals to undertake training (particularly for low-skilled employees) and those wanting to see the right repealed as an unhelpful and unnecessary burden on businesses. In particular, a number of strong views were expressed by smaller organisations with an existing culture of informal contact between employer and employee, who felt that formalising procedures would create a disproportionate burden. Consequently, in July 2011, the Government announced its decision not to extend the right to employees of SMEs for the foreseeable future. The right will continue to be available to employees of businesses with 250 or more employees, despite representations from some employers that the right should be removed altogether.

The right will be kept under review, with any changes to be implemented for April 2015. The decision reflects the Government's intention to try to reduce regulatory burden and cost on business in order to try to boost the economy.

Practical points for an employer

Amount of time off: The employer has discretion as to how much time the employee will be allowed to take off work.

Unpaid time off: There is no right to payment for time off to train, although employers can agree to pay. Employers must ensure that employees are still receiving the national minimum wage and must also have regard to the Working Time Regulations, as there are different rules around where training time is considered working time. It is also worth noting that there is an entirely separate right to paid time off to study which is available in certain circumstances to 16-18 years olds. Furthermore, there is no obligation for employers to pay for the training itself although, again, they can chose to pay, for example if they feel that the training is of benefit to their business.

Policy on time off to train: Larger organisations should have a policy on training so that a request for time off to train can be handled under the policy.

Practical point for an employee

Ensure that any application for time off for training is as detailed as possible, including the date (and the date on which any previous application was made and how it was made), a statement that it is made under section 63D of the ERA 1996, the subject matter of the training, where and when it should take place, who would provide or supervise it, what qualification (if any) it would lead to, how it would improve the employee's effectiveness in the business and the performance of the employer's business.

16 August 2011