The Rights to Request Time off for Training and Flexible Working

Employment Update for Small Businesses

March 2010

Dear Subscriber,

A new statutory right is being introduced next month which allows employees to request time off from work for training. It is modelled on the existing statutory right to request flexible working so I thought it would be timely to review that existing right as well as to explain the new one.

Please contact me if you would like to find out a bit more about any of these issues. If you need any help or advice why not take advantage of my free initial consultation.

Please forward this email to any of your contacts who might find it of benefit.

Regards

Peter Etherington

Tel: 01664 430373

www.etherington.co.uk

Follow me at https://twitter.com/petherington

The Right to Request Flexible Working

Parents and carers have the right to request flexible working

The existing right to request flexible working applies to employees who have at least 26 weeks' service by the time they make the request. They must also either have parental responsibility for a child who is under 17 (or under 18 if the child if disabled), or be a carer for an adult.

N.B. The most common application of this right is when women are due to return from maternity leave. It is a good idea to inform women of this right, and the process that they need to follow, before they go on maternity leave. That way they should be able to plan ahead and there should be no rush to address the issue when they are just about to return to work.

Only one request for flexible working may be made each year.

The definition of flexible working is broad and would include a change to working hours; to the place of work; to a job-share; to work from home; or to work term time only.

In order for a request to be valid it must be made in writing and should set out:

· The fact that it is a request for flexible working;

· The details of the employee's eligibility for making the request;

· The change that is being requested;

· The effect that the employee thinks the change would have on the employer; and

· how the employee thinks the effect of the change might be dealt with.

The employer must give the request proper consideration. If the employer is not minded to agree to the request they must arrange to meet the employee and there are various rules that must be followed with respect to timescales and notifications of meetings.

An employer may refuse a request for flexible working but only if the refusal is on one of the following grounds:

· planned structural changes

· the burden of additional costs

· a detrimental impact on quality

· the inability to recruit additional staff

· a detrimental impact on performance

· the inability to reorganise work among existing staff

· a detrimental effect on ability to meet customer demand

· lack of work during the periods the employee proposes to work

The employee has the right to appeal any decision to refuse their request and has the right to be accompanied at all meetings.

The Right to Request Time Off for Training

All employees to have the statutory right to request time off for training

From 6 April 2010 the new right to request time off for training applies but only to employees of organisations which have 250 or more employees. However, it will apply to employees of organisations of any size from 6 April 2011.

Employees must have at least 26 weeks' service by the time they make the request. Certain young employees are ineligible. Only one request for time off for training may be made each year.

The employee may request time off for a wide range of different types of training. This could include training leading towards some sort of accreditation, but it could also be unaccredited training. However, the training must, in the employee's view, be intended to improve their effectiveness in the employer's business and to improve the performance of the employer's business.

There is no limit to the amount of time off that may be requested but employees will have no automatic right to be paid for time off in these circumstances.

In order for a request to be valid it must be made in writing and should set out:

· that it is being made under section 63D of the Employment Rights Act 1996

· the subject matter of the proposed training or study

· where and when the proposed training or study would take place

· who would provide or supervise it

· what qualification (if any) it would lead to

· how the proposed training or study would improve their effectiveness in the employer's business and the performance of the business

· the date of the application

· the date and method - eg email or letter - that the employee's last application (if any) was submitted

The process for considering requests is similar to that which applies with flexible working requests, in that there are statutory timescales to be applied, and meetings to be held with employees if the employer does not wish to agree to the request.

Employers are allowed to refuse requests but only for one of the following reasons:

· that it 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

The employee has the right to appeal against any decision to refuse their request. Employees have the right to be accompanied at all meetings.

Peter Etherington Employment Law Services