Law guide: Employment

See how we helped Michael

"Fantastic! The legal document I used was so comprehensive and easy to complete. It is very reassuring to know my business now has this level of protection"

Michael S, London

Time off for study or training (England, Wales and Scotland only)

Time off for study or training (England, Wales and Scotland only)

Contents

Employers in England, Wales and Scotland who employ 250 or more employees must comply with regulations granting eligible employees the right to request to take time off work to undertake study or training (or both).

The regulations set out which employees will be eligible to the right, the procedure that an employer must follow upon receiving a request from their employer, the grounds for refusing a request and the consequences of failing to follow the procedure.

Who qualifies for the right?

Employees who:

  • Have worked for you for a continuous period of 26 weeks at the date of their request
  • Have not made an earlier request under the right during the past 12 months from the date of receipt of the current request (subject to a right to have an earlier request ignored in certain circumstances - see below)
  • Are not an agency worker, a member of the armed forces, a young person of compulsory school leaving age (school age in Scotland), a 16 or 17 year old who is already under a duty to participate in education or training as a result of Part 1 of the Education and Skills Act 2008, an 18 year old who is treated as if Part 1 of the Education and Skills Act 2008 applies to them or a young employee who already has a statutory right to paid time off to undertake study or training (under section 63A of the Employment Rights Act 1996)

The type of training or study

There are no restrictions on the type of training or studies that an employee can apply for, although the employee will need to demonstrate that it will improve their effectiveness at work and that it will also improve the performance of your business.

There is also no limit on the amount of time or the amount of study or training that an employee can request. Employees can ask to undertake more than one piece of training in a single request for time to train.

The studies or training may be:

  • Undertaken on your premises or elsewhere, including at the employee's home
  • Delivered whilst the employee is performing their employment duties or separately
  • Provided or supervised by you, a local college or training provider
  • Undertaken without supervision
  • Undertaken within or outside the UK

Payment for the training and for time spent training

Subject to the terms of their employment contract, employees will not have the right to be paid for the time spent whilst they are training and/or studying - options include the employee working flexibly to make up the time or taking unpaid time off. You will need to consider National Minimum Wage and working time regulations, as there are different rules around whether training time is treated as working time for these purposes.

Similarly, you are not obliged to pay for the cost of the training/study course.

The procedure

The employee's request

An employee should make their request in writing, ensuring that it is dated and states that it is being made under 'section 63D of the Employment Rights Act 1996'.

Their request must also provide the date on which the employee's last request (if any) was submitted to you and how it was delivered and include the following details of the proposed study or training course:

  • Its subject matter
  • Where and when it will take place
  • Who will provide or supervise it
  • What qualification they would obtain (if any)
  • How the employee thinks it would improve their effectiveness in their job/role and the performance of your business

The employer's response

Within 28 days of receiving the employee's request, you should either:

  • Notify the employee in writing that you agree to their request
  • Notify the employee in writing if you consider the request to be invalid, giving reasons for your decision
  • Notify the employee in writing if you require additional information from him/her so that you can give the request proper consideration
  • Hold a meeting (after receiving any additional information, if requested) with the employee to discuss the contents of their request

You must then notify the employee of your decision in writing within 14 days of the meeting.

Appealing a decision

An employee can appeal against a refusal within 14 days of receipt of your rejection letter.

Within 14 days of receipt of the employee's appeal letter, you must either notify the employee in writing that their appeal has been successful or hold a meeting with the employee to discuss his/her appeal.

Within 14 days of the appeal hearing, you must write to the employee notifying him/her of the outcome of their appeal.

The timescales mentioned above can be extended by agreement.

Ignoring an earlier application

An employee can only submit an application once every 12 months. However, you must ignore this requirement and allow the employee to submit an additional application within the 12-month period, if at the time of making the current request, the employee notifies you that he/she wants to withdraw their earlier application because he/she:

  • Mistakenly submitted an earlier application before 12 months elapsed.
  • Did not start the study and/or training course which was previously agreed because the training was cancelled by either you, the institute undertaking the course, some other provider or facilitator or the person who was supervising it. This cannot be relied upon if it was cancelled because of the employee's conduct in relation to the study or training.
  • Did not start the study and/or training course because of some unforeseen circumstance beyond their control.

Withdrawing a request

An employee may withdraw their request, either orally or in writing, at any time before you have notified him/her of your decision. If you receive an oral request to withdraw, you must confirm it in writing to the employee.

If an employee withdraws their request, it will still count as a request received under the statutory right.

Withdrawing an agreement

When considering an employee's request, you should attempt to foresee circumstances in which you may need to later withdraw an agreement if you accept the employee's request. This should then be agreed with your employee and also confirmed in writing to him/her as part of your written acceptance of their request.

Grounds for refusal

You may refuse all or part of an employee's statutory request for time to study or undertake training on one or more of the following grounds:

  • It would not improve the employee's effectiveness in your business
  • It would not improve the performance of your business
  • The burden of the additional costs would be too high
  • It will have a detrimental effect on your ability to meet customer demand
  • It will have a detrimental impact on quality
  • It will have a detrimental impact on performance
  • You will be unable to reorganise work amongst existing staff
  • You will be unable to recruit additional staff
  • There will be an insufficient amount of work during the periods the employee proposes to work
  • There are planned structural changes during the proposed study or training period

Notifying an employee of the decision

Accepting a request

If you accept an employee's request, you must write to him/her stating:

  • Details of the subject matter of the study or training
  • Where and when it will take place
  • Who will provide or supervise it
  • What qualification it will lead to (if any)
  • Whether or not the employee will be paid whilst undertaking the agreed study or training
  • Who will be responsible for its direct costs
  • Details of any required changes to the employee's working hours

If you accept only part of an employee's request, you must write to him/her stating which part of the request is agreed and provide the same information in respect of the agreed part.

If, as a result of your discussions with the employee, an agreement is reached to meet their study or training request which is different (in whole or in part) to the details set out in the employee's request, then you must write to him/her confirming the details of the agreement and provide written evidence of the employee's agreement to it. This agreement should usually be drafted with the employee at the meeting where it is discussed.

Refusing a request

If an employee's request is refused, you must write to him/her identifying the statutory grounds for refusal, explaining why you think the grounds apply in the circumstances and, where applicable, confirm the internal appeal procedures.

If you refuse only part of an employee's request, you must write to him/her stating which part of the request is rejected and provide the same information in respect of the rejected part.

Meetings to discuss an employee's request or appeal

An employee is entitled to be accompanied at such meetings by a work colleague or a trade union representative whom you currently employ.

The companion can address the meeting and confer with the employee during it, but may not answer questions independently of the employee.

The meeting should take place at a time and location that is convenient to you and the employee.

If the employee's companion is unable to attend the meeting, the employee can request it to be rearranged at a mutually convenient time for all attendees, which should be no later than seven days after the date originally proposed for the meeting.

You are entitled to regard an employee's request to be withdrawn if he/she fails to attend a meeting to discuss their request or appeal on more than one occasion, without reasonable cause.

Employee's duties after a request has been agreed

The employee must inform you in writing if he/she:

  • Fails to start or complete the study or training course
  • Undertakes or proposes to undertake any studies or training that differs from the details provided in your correspondence notifying the employee of your decision to accept their request.

Complaints to an employment tribunal

An employee may only make a complaint to an employment tribunal where either:

  • Your decision to reject their request was based on incorrect facts (although this issue should first be covered in the appeal meeting)
  • You failed to follow the correct procedure

An employment tribunal does not have power to question your business reasons for refusing an employee's request, but it can examine the facts on which the business reason was based to see if they are correct. However, if a complaint is made jointly with other legislation, such as discrimination legislation, the employment tribunal may examine how the request was considered.

A successful complaint for failing to observe the statutory procedure or invalid reasons for refusal will result in a maximum award of 8 weeks' pay capped at the same maximum rate for unfair dismissal awards (currently £479 per week).

There is a separate award of up to two weeks' pay if you did not allow the employee to be accompanied at a meeting.