Consider time for training

The right to request time to train applies across Great Britain to employees in all organisations with at least 250 employees.

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

As an employer, you are required to consider any requests and respond within a set timeframe. You can turn down requests when you have a good business reason to do so, including where you do not believe the training will help improve business performance. The new right closely follows the model used for agreeing requests under the flexible working arrangements.

This guide is designed to help employers, human resources managers and others with responsibility for dealing with requests to understand their responsibilities under the new right, and the responsibilities of your employees.

This is only applicable to England, Scotland and Wales. The information is not relevant to businesses in Northern Ireland.

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Employee eligibility criteria for time to train

The right to request time to train applies across Great Britain to employees in all organisations with at least 250 employees.

However, not all training requests have to be made using the time to train request. Where good workplace dialogue and training systems are already in place these can continue to be the route to request training.

To make a request for time to train an individual must:

• be an employee
• have worked for you continuously for at least 26 weeks on the date they make their request

The following groups do not have the right to request time to train:

• agency workers
• members of the armed forces
• young people of compulsory school age (or, in Scotland, school age)
• young people who already have a statutory right to paid time off to undertake study or training (under section 63A of the Employment Rights Act 1996)
• 16 or 17 year olds who are already under a duty to participate in education or training as a result of Part 1 of the Education and Skills Act 2008
• 18 year olds who are treated as if Part 1 of the Education and Skills Act 2008 applies to them

You can of course consider requests from employees who are not eligible for the new right. In this instance, you may find it helpful to follow the same procedure that is used for considering requests from eligible staff. See the page in this guide on considering whether to accept or reject a time to train request.

This is only applicable to England, Scotland and Wales. The information is not relevant to businesses in Northern Ireland.

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Training employees can request as part of time to train

Employees can make requests to undertake any training which they believe will improve their effectiveness in your business, and the performance of your business.

The training they undertake can include accredited programmes – leading to the award of a recognised qualification – or shorter unaccredited training to help them develop specific skills relevant to their job, workplace or business.

Employees can request training that is delivered in whichever way they believe is most appropriate and effective. For example, they might request training which would be:

• undertaken on the employer’s premises or elsewhere, including at the employee’s home
• delivered whilst they are performing their employment duties or separately
• provided or supervised by the employer, a local college or training provider
• undertaken without supervision
• undertaken within or outside the UK

There is 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, eg where they would like to improve their literacy and numeracy skills in addition to another piece of training.

Payment for time spent training

Employees have the right to request that you allow them time to undertake training. They do not have the right to be paid for the time spent training when you agree to their request. However, you may agree to this recognising the value of the investment.

It may be that you agree to their request for time to train, and reach agreement with the employee that they will work flexibly to make up the time spent training, or that they will take unpaid time off to train.

In considering this you also need to have regard to the national minimum wage and working time regulations as there are different rules around where training time is treated as working time for these purposes.

See our guides on national minimum wage – hours for which the NMW must be paid and hours, rest breaks and the working week.

This is only applicable to England, Scotland and Wales. The information is not relevant to businesses in Northern Ireland.

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Information employees must include in a time to train request

In order for a request for time to train to be a valid request, covered by the legislation, it must be submitted in writing and contain the following information:

• a statement that the application is an ‘application under section 63D 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 it would lead to (if any)
• how the employee thinks the proposed training or study would improve their effectiveness in your business and the performance of your business
• the date of the application
• the date and method – eg email or letter – that the employee’s last application (if any) was submitted

Employees can submit requests in any written form they choose as long as they contain the above information. You may want to provide your employees with a form or template of your own.

Frequency of requests

You are only required to consider one request from an employee in any twelve month period unless your employee has requested that you ignore an earlier request. See the page in this guide on invalid time to train requests and request withdrawals.

If one of your employees submits more than one request in a given 12 month period, it would be good practice to inform them within 28 days if you do not intend to consider it.

This is only applicable to England, Scotland and Wales. The information is not relevant to businesses in Northern Ireland.

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Invalid time to train requests and request withdrawals

If you consider an employee’s request to be invalid because it does not include all of the necessary information, it would be good practice to notify the employee of this within 28 days. You must also inform them of the reason why you consider the application is invalid.

Your employee may then revise and resubmit their request with the error corrected. You would then need to treat this as a new request and would need to consider it because the initial request was not a valid one.

Withdrawal of a request by an employee

An employee may decide to withdraw a request at any point before you have notified them of your decision. They can notify you orally or in writing. If you do not receive written notification from the employee that their request is withdrawn, you must confirm the withdrawal of the application to the employee in writing. Download a template letter for treating a time to train request as withdrawn [opens in a new window].

If an employee withdraws a request, it will still count as a request that you have received for the purposes of this legislation.

Ignoring earlier requests

There are three circumstances in which the employee, having submitted a further request, may ask you to ignore an earlier request submitted within the last 12 months. These are:

• where the employee notifies you that they mistakenly submitted an earlier request before 12 months elapsed and they wish to withdraw the earlier application
• 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 in relation to the study or training
• where the employee failed to start training that was agreed as part of a request because of some unforeseen circumstance beyond their control

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

This is only applicable to England, Scotland and Wales. The information is not relevant to businesses in Northern Ireland.

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Timescales for considering time to train requests

Within 28 days of receiving a valid request you must either:

• accept the request on the basis of the information set out in the individual’s written request and inform the employee of your decision in writing
• meet with the employee to discuss their request – then within 14 days of that meeting, you must inform the employee of your decision in writing

If the person in your business who would normally deal with training requests is absent from work on the day the application is received, the period within which a meeting must be held is automatically extended. A 28 day extension period will begin on the day that person comes back to work. This automatic extension can last no longer than 28 days.

The timescales for holding meetings and issuing notices of decisions on applications and appeals can be extended by agreement with the individual who has made the request. Such an agreement must be recorded in writing and a copy given to the employee.

The record of agreement to extend these timescales must:

• specify what period the extension relates to
• specify the date on which the extension is to end
• be dated

Download a template letter for extending the time limit for handling a time to train request [opens in a new window].

Requesting additional information to help you consider a request

If you have received a valid request but feel that you need additional information before you can give the request proper consideration, you can ask the employee to provide additional information.

If the employee refuses to provide you with additional information you need to consider the request, you can treat their request as withdrawn. To do this, you must inform the individual in writing that you consider their request to be withdrawn.

This is only applicable to England, Scotland and Wales. The information is not relevant to businesses in Northern Ireland.

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Considering whether to accept or reject a time to train request

There may be cases where you are content to accept in full the employee’s proposals for training as set out in their request.

There may also be cases where you are content to accept the request, but think the training need can be met in a different way to the request proposal. For example, you may prefer to deliver training in-house rather than using an external training provider, or you may be aware of different courses or qualifications that you believe would better meet the training need the employee has highlighted.

In such cases, you will need to discuss the employee’s request with them before reaching your final decision and confirming it, in writing, to the employee. Download a template letter for accepting a time to train request [opens in a new window].

Once the training method has been agreed you will need to consider how the costs of the training will be met. You do not have to pay for training, but you may choose to do so.

You may only refuse an employee’s request for time to train for one of the following business reasons:

• the proposed study or training would not improve the employee’s effectiveness in your business
• the proposed study or training would not improve the performance of your business
• the burden of additional costs
• agreeing to the request would have a detrimental effect on your ability to meet customer demand
• you would be unable to reorganise work among existing staff
• you would be unable to recruit additional staff
• agreeing to the request would have a detrimental impact on quality
• agreeing to the request would have a detrimental impact on performance
• there would be an insufficiency of work during the periods the employee proposes to work
• there are planned structural changes during the proposed study or training period

Meeting an employee to discuss their time to train request

The law does not prescribe how you should carry out meetings to discuss requests but there are certain requirements concerning the attendance of companions at such meetings.

The employee has a statutory right to be accompanied by a colleague of their choosing who also works for you, eg a union learning representative. You may choose to allow an employee to be accompanied by someone who does not work for you – for example, where they have special needs of some kind – but you are not required to do so.

The 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 that you rearrange the meeting. 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.

You must pay the employee and their companion for the time taken away from their normal working duties to attend the meeting.

Employee failure to attend meetings to discuss their request

If the employee more than once fails to attend a meeting to discuss a request – or a meeting to discuss an appeal – without reasonable cause, you can treat the request as withdrawn. You should confirm in writing that the application is withdrawn.

This is only applicable to England, Scotland and Wales. The information is not relevant to businesses in Northern Ireland.

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Communicating decisions on time to train requests

Once you have considered your employee’s request for time to train and reached a final decision, you will need to confirm that decision to the employee in writing.

Notifying an employee that you have accepted their request

You must confirm the details of your agreement to an employee’s request in writing, including the following details:

• the subject of the study or training
• where and when you expect that 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 – eg whether it will be paid, unpaid, or whether the employee will work flexibly whilst undertaking the training
• how the costs of the training will be met

Download a template letter for accepting a time to train request [opens in a new window].

If your approval of an employee’s request involves changing their terms and conditions – eg a change in working hours or because you have agreed that the training time will be unpaid – then you should follow normal practices for making such changes.

Notifying the employee that you have accepted part of their request

An employee might request more than one type of study or training at once. You could decide to agree to part of the application and refuse another part. The decision notice must include the information above and make clear which part of the application you agree to and which part you refuse.

Where you and your employee agree a different training outcome

As a result of your discussions with them about their request, you might reach an agreement with the employee to meet their training need in a different way. Your written notification should confirm the details of that agreement, including written evidence of the employee’s agreement to it. It can be helpful to draft such an agreement with the employee at the meeting where this is discussed.

Later withdrawal of agreement

You might agree to an employee’s request, but foresee circumstances in which you may need to later withdraw that agreement. In such cases, you should agree with your employee the circumstances in which you will withdraw your agreement. You should also confirm this in writing to the employee as part of your written acceptance of their request. It can be helpful to draft such an agreement with the employee at the meeting where this is discussed.

Notifying an employee that you have rejected their request

If you decide that you cannot accommodate an employee’s request for time to train, you must inform them of your decision in writing, setting out:

• which of the business reasons you are turning down their request for
• why the business reason, or reasons, apply in their circumstances
• the appeal procedure
• the date of the notice

This is only applicable to England, Scotland and Wales. The information is not relevant to businesses in Northern Ireland.

Download a template letter for refusing a time to train request [opens in a new window].

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Internal appeals process for time to train requests

An employee can appeal to you to challenge your decision. They must make their appeal in writing within 14 days of receiving your written notice refusing their request or part of their request.

The appeal notice must be dated and must set out the employee’s grounds for making the appeal.

An employee might appeal because they want to either:

• challenge a fact you gave to explain why the business reason applies
• bring to your attention something you weren’t aware of when you rejected the application, eg that another member of staff is now willing to cover the hours the employee wishes to train.

There are no restrictions on the grounds for this appeal.

You must act within 14 days of receiving the employee’s appeal notice. If you decide to accept the appeal, you should write to the employee setting out the same information as is required when accepting an initial request – see the page in this guide on communicating decisions on time to train requests.

Arranging an appeal meeting

If you do not accept the appeal, you must arrange an appeal meeting. This must be held within 14 days of the date you received the employee’s appeal notice.

If it is practical, the appeal should be heard by a different manager to the person who considered their initial request.

The principles on the right to be accompanied, pay for attending the meeting and what happens if the employee fails to attend are the same as for the initial meeting.

Notifying an employee of your decision following the appeal meeting

You must inform the employee of the outcome of their appeal in writing within 14 days of the date of the meeting.

If you choose to accept the employee’s request, you must provide them with written notification. For information on what to include, see the page in this guide on communicating decisions on time to train requests.

If your decision is still to refuse the request, you must send the employee a dated, written notification including:

• the grounds for your decision
• why the grounds apply in their circumstances

Download a template letter for notifying a decision on a time to train request following an appeal meeting [opens in a new window].

The time limit for arranging an appeal meeting or notifying the employee of your decision on the appeal can be extended with the employees consent. See the page in this guide on considering whether to accept or reject a time to train request.

This is only applicable to England, Scotland and Wales. The information is not relevant to businesses in Northern Ireland.

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Dealing with unresolved time to train requests

There may be occasions where an employee is not satisfied with the way that you have dealt with their application, even after an internal appeal.

Informal resolution

You should first try to resolve any problems informally. For example, if a manager misses a deadline to respond to an employee’s request, you should tell them to deal with the application as quickly as possible to discourage the employee from taking more formal action.

If you cannot resolve the issue internally, you could try using an external third-party mediator or conciliator, eg Acas.

Internal grievance procedure

If the issue is still unresolved, the employee may use your internal grievance procedure – read our guide on handling grievances.

Tribunal claims

If all other methods have failed, the employee may feel that a complaint to an employment tribunal is necessary.

Acas may be able to offer its pre-claim conciliation service if you believe the employee is about to make a complaint to an employment tribunal. Find out about pre-claim conciliation on the Acas website- Opens in a new window or contact the Acas Helpline on Tel 08457 47 47 47.

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

• your decision to reject an application was based on incorrect facts (although this issue should first be covered in the appeal meeting)
• you didn’t follow the correct procedure, eg you didn’t hold the meeting to discuss the request within the correct timescale or you didn’t provide a complete and proper explanation to the employee of your decision to refuse their request

An employee cannot make a complaint because they simply disagree with the business grounds you give.

The employment tribunal does not have power to question your business reasons, although it can examine the facts on which the business reason was based to see if they are factually correct. However, if a case is brought jointly with other legislation, eg the Sex Discrimination Act 1975 or other discrimination legislation, an employment tribunal may examine how the request was considered.

Remedies and compensation

An employment tribunal can order you to:

• pay an award to the employee
• reconsider the request by following the procedure correctly

It can order you to do either or both of these things.
The maximum level of compensation is eight weeks’ pay – although there is a statutory cap on the amount of a week’s pay.

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

See our guide on employment tribunal claims – the basics.

This is only applicable to England, Scotland and Wales. The information is not relevant to businesses in Northern Ireland.

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Employment protection and time to train requests

You must not treat an employee detrimentally or dismiss them for a reason relating to their request for time to train. In addition, you should note that rejecting a request for time to train could give rise to a discrimination claim.

Employees are protected from suffering a detriment or being dismissed because:

• they made – or proposed to make – a request for time to train
• they exercised – or proposed to exercise – a right under the time to train procedure
• they have made – or have stated their intent to make – a complaint to an employment tribunal in respect of a request for time to train
• they exercised – or sought to exercise – their right to be accompanied at a meeting to discuss their request or they accompanied another employee to such a meeting

A detriment is where you act – or deliberately fail to act – in a way that results in unfair treatment of the employee, eg where you fail to offer them promotion, facilities or training opportunities that you would otherwise have offered or made available to them.

Employees who suffer a detriment or are dismissed in these circumstances may make a complaint to an employment tribunal.

See our guide on employment tribunal claims – the basics.

Discrimination

In some circumstances, rejecting an employee’s request for time to train could open up the possibility of a claim for discrimination on grounds of sex, race, religion or belief, sexual orientation, disability or age.

See our guide on how to prevent discrimination and value diversity.

Less favourable treatment of part-time workers and employees on fixed-term contracts

You must not treat a part-time worker or an employee on a fixed-term contract less favourably than a comparable full-time worker or permanent employee – unless that treatment is justified by objective business grounds. For more information, see our guide on employing part-time workers.

This is only applicable to England, Scotland and Wales. The information is not relevant to businesses in Northern Ireland.

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