Back to top

The Right to Request Time to Train

Employees who work in organisations with 250 employees or more and who have at least 26 weeks' continuous service (subject to certain exclusions) have a statutory right to request time off work for study or training.

This means that those employees have a legal right to ask their employer to give them time away from their normal job duties to undertake training that they believe will improve both their effectiveness in their employer’s business and the performance of their employer’s business.  This does not mean that the employer is compelled to agree to the request, but they are expected to seriously consider it and respond within a set time period. A request can be turned down where there is a good business reason to do so; including where the employer does not believe the training will help improve business performance. 

Employees’ requests can be to undertake accredited training programmes leading to a qualification, or for unaccredited training to help them develop specific skills relevant to their job, workplace or business.  Whilst employee requests may involve agreeing time away from their normal job duties, the primary focus of the right is about the employer agreeing relevant training with the employee.

Eligibility

In order to make a statutory time to train request, an individual must:

  • Be an employee
  • Have worked for their employer for a continuous period of at least 26 weeks at the date the request is made.
  • Subject to limited exceptions, not have made another application for time to train under the right during the previous 12 months.

However, some employees aged 18 or under are subject to special laws on education and training, and may not be entitled to make a statutory time to train request, depending on their age and qualifications.

The employer and employee are of course free to make other arrangements in relation to study or training which fall outside the statutory right if they so choose.  Likewise, employers may if they wish still consider requests from employees who are not eligible for the statutory right.

Types of training

The provisions are flexible as to the type and manner of delivery of training.  For example, the training can be undertaken at the employer’s premises or elsewhere (including at the employee’s home), it can be undertaken by the employee whilst performing their job duties (i.e. ‘on the job’ training) or separately, it can be provided or supervised by the employer or externally by a third party such as a local college or training provider, it can be undertaken without supervision (such as e-learning), it can be accredited or unaccredited and it need not be intended to lead to the award of a recognised qualification.  Essentially, employees can make requests to undertake any training which they believe will improve their effectiveness in their employer’s business and the performance of that business.

There is no limit on the amount of time – or the amount of training – that an employee may request.  The employee may also include more than one course of training or study in one request.

The application procedure

The application must be made for the purpose of enabling the employee to undertake study or training (or both) with the purpose of improving their effectiveness in the employer’s business and the performance of the employer’s business.

The employee’s application must be submitted in writing and contain the following information:

  • A statement that it is an application to request time off for study or training ‘made under section 63D of the Employment Rights Act 1996’. 
  • Details of the proposed study or training i.e. its subject matter, how long it would last, where and when it would take place, who would provide or supervise it and what qualification (if any) it would lead to.
  • An explanation of how the employee thinks the proposed study or training would improve their effectiveness in the employer’s business and the performance of the employer’s business.
  • The date of the application.
  • The date and method that the employee’s last application (if any) was submitted.

Employees can submit their requests in any written form they choose as long as they contain the above information.  If the request does not contain the required information, the employer should notify the employee that the request is invalid.  The employee may then resubmit their request with the errors corrected.

Employers are generally only obliged to consider one request in any 12 month period (excluding any requests that were initially rejected as invalid).

If an employee withdraws a request at any point before the employer has notified them of the decision, it will still count as a request that has been received for the purposes of the legislation.

When a request made within the last 12 months will not be taken into account

The only circumstances where an employer should ignore an earlier request submitted within the last 12 months are:

  • Where an employee withdraws the earlier request because it was not valid. Where the employee did not undertake training that was agreed following a request because the training was cancelled (unless this was due to their own conduct), or due to unforeseen circumstances beyond the employee's control.

In these circumstances, the employer must ignore the fact that the employee submitted an earlier application, and consider their present request.

The procedure for determining time to train requests

In summary, the procedure operates in the following way:

  • Within 28 days of receipt of the employee’s application (or longer time period where agreed between the employee and employer in writing), the employer must set up a meeting with the employee to discuss it.  There is no need for a meeting if the employer wishes to accept the employee’s request on the basis of the information set out in their application – in this case, the employer can inform the employee of his decision in writing.  If the employer feels additional information is required to give the request proper consideration, they can ask the employee to provide it and if the employee refuses, their request can be treated as withdrawn and the employer can inform the employee in writing accordingly.
  • The employee has a right to be accompanied at this meeting by a fellow employee.  The employee’s companion can address the meeting and confer with the employee during it, but may not answer questions independently of the employee.  If the companion is unable to attend the meeting, the employee can ask for it to be rearranged.  The time the employee proposes must be convenient for all attendees and should take place within seven days of the date originally proposed for the meeting.  If the employee fails more than once to attend a meeting without reasonable cause, the employer can treat the request as withdrawn and should confirm this to the employee in writing.  Breach by the employer of the right to be accompanied can result in an award of up to two weeks’ pay (at the statutory cap on a week’s pay as applicable from time to time; please see Statutory Rates and Limits table for further information).
  • The employer must consider the request and make a practical business assessment on how the time to train request could be accommodated.  The employer must then notify the employee of their decision in writing within 14 days of the meeting.
  • Where the employer is content to accept the employee’s request but believes the training need can be met in a different way to the request proposal (for example, delivering the training in-house rather than using an external training provider), they will need to discuss the request with the employee before reaching a final decision and confirming it in writing.
  • If the employer accepts the employee’s request, they must confirm the details of this agreement to the employee in writing, including:

                  - The subject of the study or training.

                  - Where and when the employer expects it will take place and over what period.

                  - Who will provide or supervise the training.

                  - What qualification (if any) the training will lead to the award of.

                  - How the training time will be taken (i.e. will it be paid or unpaid and will there be any changes to the employee’s working hours in order to accommodate the training?).

                  - How any tuition fees or other direct costs of the training will be met.

                  - The date of the decision notice.

  • If, at the meeting, an agreement is reached with the employee to meet their training need in a different way, the written acceptance notification should contain details of that agreement, including written evidence of the employee’s agreement to it.
  • If the employer foresees circumstances in which they might need to later withdraw agreement to an employee’s request, those circumstances should be agreed with the employee and confirmed in writing as part of the written acceptance of the request.
  • If the request is refused, the employer must inform the employee of their decision in writing, setting out:

                   - On which business ground, or grounds, the request is being turned down.

                   - A sufficient explanation as to why the business ground, or grounds, applies in the circumstances.

                   - The appeal procedure.

                   - The date of the decision notice.

  • If the employer only accepts part of the employee’s request (for example, the employee requested more than one type of training at once but only some of this is accepted), the decision notice must include all of the information above (for both acceptances and refusals) and make clear which part of the application is accepted and which part of the application is refused. 
  • The employee can appeal in writing against a refusal within 14 days of receipt of the employer’s notice refusing their request or part of their request.  The appeal notice must be dated and must set out the employee’s grounds of appeal.
  • The employer must then set up a meeting with the employee to discuss the appeal within 14 days of receipt of the employee’s appeal notice (unless the appeal is accepted, in which case the employer should write to the employee setting out the same information as is required when accepting an initial request).  If possible, the appeal should be heard by a different manager to the person who considered the initial request.  The same right to be accompanied by a fellow employee applies at appeal meetings.
  • The employer must then notify the employee of the decision in writing on the appeal within 14 days of the date of the appeal meeting.  If the employee’s request is accepted, they must be provided with written notification as above.  If the request is still refused, the employer must send the employee written notification of refusal, including:

                - The business ground, or grounds, for the decision.

                - A sufficient explanation as to why the business ground, or grounds, applies in the circumstances.

                - The date of the decision notice.

The time and place of meetings must be convenient to both employer and employee.

The timescale for holding meetings and issuing notices of decisions on applications and appeals can be extended by written agreement with the employee.  It is the employer's responsibility to ensure that this is recorded in writing and a signed and dated copy should be given to the employee specifying what period the extension relates to, the date on which the extension ends. There are also provisions relating to extensions of time where the person in the employer’s business who normally deals with training requests is absent from work due to annual leave or sick leave on the day the employee’s application is received.

Where an employer agrees to a request for time to train, the employee has an obligation to inform the employer if they fail to start or complete the agreed study or training or undertake, or propose to undertake, study or training that differs in any respect from that originally agreed.

Payment for training

If the employee’s application is successful, there is no obligation on the employer to pay any costs of the agreed training.  Should, however, an employer wish to pay for external training fees, it would be advisable to enter into an agreement with the employee to claw back a pro rata amount of the cost of the training should the employee leave employment either during the training course or within a specified period of time after its completion, please see SL42- Training Agreement

The employer is also not obliged to pay the employee their wages for any time off work that is needed to accommodate the agreed training.  Any time off to train may be unpaid, however employers should also be aware that training which has been approved by them will count as working time and therefore they should be mindful of their obligations under the National Minimum Wage regulations.

Grounds for refusal

Employers must consider all valid requests for time to train.  However, an employer may refuse an application in whole or in part provided that the reason for the refusal falls under one of the permissible grounds.  These are:

  • The proposed study or training would not improve the employee’s effectiveness in the employer’s business or the performance of the employer’s business.
  • The burden of additional costs.
  • Detrimental effect on ability to meet customer demand.
  • Inability to re-organise work among existing staff.
  • Inability to recruit additional staff.
  • Detrimental impact on quality.
  • Detrimental impact on performance.
  • Insufficiency of work during the periods the employee proposes to work.
  • Planned structural changes.
  • Any other reasons that the Government sets out in future regulations.

An employer can refuse part of a request on one of these grounds.  Thus, as discussed above, an employee requesting to undertake two courses may have only one approved.

The employer should provide a sufficient written explanation to the employee of why the particular ground applies in the circumstances.  It is not sufficient simply to state that the application is turned down, for example, ‘because of the burden of additional costs’.

What action might an employee take?

In support of the provisions, employees have the right not to be subjected to a detriment or unfairly dismissed on grounds relating to time to train applications.  Any dismissal is automatically unfair, regardless of the length of the employee’s employment.  In some circumstances, rejecting a time to train request could also give rise to a claim for unlawful discrimination, depending on the reason for refusal.

An employee may present a complaint to the Employment Tribunal where they believe that the employer has failed to properly comply with the time to train procedure (including where the employer has refused the request for a reason other than one of those permitted) or has based his decision on incorrect facts.  Where a claim is being brought on the basis of an employer’s refusal, the employee must have received the employer’s decision in relation to the application on appeal.  Note the Employment Tribunal’s role is limited to ensuring the employer has followed the correct procedure.  Provided it is made on one of the specified grounds, the business decision itself cannot be challenged except insofar as it is based on facts that are ‘incorrect’.

The employee has three months to bring a claim in the Employment Tribunal from either the date on which they were notified of the decision on appeal or (in certain kinds of cases) the date when the employer is alleged to have failed to comply with a duty concerning the consideration of a request.  If the employee is successful, the tribunal may make an order for reconsideration of the time to train application and an award of compensation to be paid by the employer to the employee.  The amount of compensation must be such as the tribunal considers just and equitable in all the circumstances, subject to a maximum award of eight weeks’ pay (at the statutory cap on a week’s pay; please see the Statutory Rates and Limits table for further information).

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.