A weighty issue

A new right for employees to apply for education or training opens up new ground for potential grievance, as Richard Bird explains.

Schools and colleges are pretty good at training. 'Rarely cover' appears not to have seriously dented it and even the coming cuts may not affect it too much. They had better not.

In one corner of the Apprenticeships, Skills, Children and Learning Act (ASCL Act 2009) is the introduction of a new right for employees to apply for education or training.

An employee of a school or college (but not agency workers) may make an application to undertake study or training if its purpose is to improve the employee's effectiveness in the employer's business and the performance of the employer's business.

It does not include mandatory time off with pay, yet. Much of the detail will be in regulations but the essentials are clear enough for heads and principals to realise that they have a new liability and staff a new potential ground for grievance.

'Study or training' may be undertaken at work, home or other location. It may be done as part of employment or separately; it may be provided or supervised by the employer or someone else, or done independently without supervision. It need not lead to a qualification.

As with flexible working, there is to be a process. An application must give details of content, where and when it would take place, who would provide and supervise it, what qualification (if any) it would lead to and how the employee thinks the proposed study or training would improve the employee's effectiveness in the employer's business and the performance of the employer's business. It may also have to contain "information of any other description specified by the Secretary of State in regulations".

When the employer receives an application, s/he must deal with it "in accordance with regulations made by the Secretary of State". These will most likely include a formal meeting.

There is no requirement to respond if there has been another application from the employee within a 12-month period unless the Secretary of State has made regulations to allow an employee to ask the employer to ignore that restriction. One does wonder exactly why, if that is contemplated, the restriction is on the face of the Act.

The employee must inform the employer if s/he fails to start or complete the agreed study or training or undertakes, or proposes to undertake, study or training that differs from what was agreed.

First refusal

Can proposals be refused? As with flexible working, in theory they can. The grounds for refusal 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

• 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

And, predictably, "any other grounds specified by the Secretary of State in regulations."

So will the act be a dead letter? That will depend. An employee may go to an employment tribunal because the employer has failed to comply or the decision to refuse the application was made on incorrect facts. If tribunals are unsympathetic to employers' arguments, it may end up being as difficult to resist as flexible working.

Will it matter that a school or college has a well-developed CPD programme? That should help, particularly because the criteria are not whether it will make the employee a more rounded or fulfilled person or more employable elsewhere, but whether s/he will be able to make a better contribution to the current employer.

If there is not well-developed CPD, it is likely to be difficult to resist. Such a programme will have to be non-discriminatory, of course and part-time and older employees will be an issue.

If an employment tribunal finds a complaint is well founded, it must make a declaration to that effect and may make an order for reconsideration and/ or award compensation. The amount of any compensation must be "just and equitable in all the circumstances", but must not exceed the permitted maximum of weeks' pay "specified by the Secretary of State in regulations".

British employers nationally do need to encourage training more. It is likely, though, that it will be employers such as schools and colleges, who have created an appetite for training, who will take the full force of the change.