Expert advice: taking time off work for training

The right to request time off for training does not apply to all staff. 

To be eligible to make a request, the individual must be an employee and must have at least 26 weeks of continuous service. The right does not apply to agency staff, or certain individuals under the age of 18. 

The general rule is that an employee can only make one request in any 12-month period.

The right to request also only applies to certain types of training and must improve the employee's effectiveness at work and improve the performance of the business. There is no requirement for the training to lead to a formal qualification and may simply be training to develop a skill relevant to the individual's job or the wider business.

Procedure

There is a prescribed procedure to follow, with timescales to comply with, when making and dealing with a request for time off for training.

An employee wanting to make a request must do so in writing and include the subject matter of the training, when and where it would take place, and how they believe the training would benefit their effectiveness and the performance of the business.

The application should be discussed with the employee within 28 days and a decision made within 14 days of that meeting. This response should contain specific information including whether the request has been accepted or refused.

The employee has 14 days to appeal the decision, and the employer then has another 14 days to either uphold the appeal, or arrange an appeal meeing. Where there is an appeal meeting, a response should follow within 14 days.

A failure to comply with the procedure means the employee has grounds on which to raise a grievance.

Consideration

All requests should be considered seriously, as an unreasonable refusal could have severe consequences. 

Employers may be content to accept the request in full, in which case there will be little controversy; or the employer may be happy with the request in theory, but may want to suggest a variation to the original request -such as the training provider, or when the training is carried out; or the employer may wish to reject the application.

Requests should only be rejected because:

• The proposed study or training would not improve the employee's effectiveness in the business and would not improve business performance.

• The burden of additional costs.

• Agreeing the request would have a detrimental effect on ability to meet customer demand.

• Inability to reorganise work among existing staff.

• Inability to recruit additional staff.

• Agreeing the request would have a detrimental impact on quality of performance.

• There is insufficient work during the periods the employee proposes being at work.

• There are planned structural changes during the proposed training period.
  
  

None of these should be seen as 'excuses' without proper evidence to support the business rationale.

Also take into account...

Discrimination

Employers need to take care to avoid discrimination when dealing with requests. This includes not only dealing with all applications in the same way, but also being mindful of any indirect discrimination issues which may arise from turning a request down - even if an employer feels they have a legitimate business reason under the new legislation.

National Minimum Wage

Technically, there is no right to be paid for time off or for you to pay for the course itself (which might discourage applications). However, time spent carrying out training approved by the employer during normal working hours counts as working time for the purposes of the National Minimum Wage (NMW). Where employees are paid at, or close to, this rate, care needs to be taken to ensure that their pay over the particular reference period does not fall short of the minimum requirements.

Working time

Attending work-related training courses is usually included as working time for the purposes of the working time regulations. Attendance at training should be monitored to ensure those who have not opted out are not working more hours, or with fewer breaks, than they are entitled to.

Additional protection

Employees who have made a request for time off for training are protected from suffering a detriment for having made the application. Further, it is automatically unfair to dismiss an employee because they have made an application, and no qualifying period of service is needed for them to lodge their claim.

Costly mistakes

A failure to deal with a request properly, or at all, could lead to potentially expensive Employment Tribunal proceedings, or other fines. The Tribunal can award:

• Up to eight weeks' pay as compensation where a decision to reject an application was based on incorrect facts, or where the incorrect procedure was followed.

• A reconsideration of the application.

• Up to two weeks' pay in addition if there was a failure to allow the employee to be accompanied to a meeting.

• Potentially unlimited compensation if the handling of the request, or the basis for turning it down, was discriminatory.

• Compensation for detriment or unfair dismissal.

• A breach of the NMW can lead to a fine of up to £5,000; and a breach of the working time regulations can lead to a potentially unlimited fine and up to two years' imprisonment, as well as compensation for the employee.