Employment and Immigration Law Legal Update 25.06.2008

In this edition we focus on a new Government consultation on workers rights to request time off to train, Acas' recently published new draft Code as well as an individuals' rights following the withdrawal of an offer of employment.

TIME TO TRAIN - CONSULTATION ON A NEW RIGHT TO REQUEST TIME TO TRAIN FOR EMPLOYEES IN ENGLAND

On 18 June 2008 the Government launched a consultation to provide employees with the right to request time away from work to undertake a relevant training course provided that they have worked for their employer for a minimum of 26 weeks.

The Consultation will close on 10 September 2008 with the Government expecting to implement the right in 2010.

Why?

The Government estimates that one third of employers do not provide any form of training for their staff and that approximately eight million employees go without training every year. The Government asserts that 'investing in talent is one of the most powerful things we can do to ensure that our nation's employers and our economy as a whole can compete in the global age.'

The new right will encourage employers and employees to enter into a serious dialogue about the skills required by the business which will be also be beneficial to the employee. The purpose of the new right is to allow employees to benefit by improving their skills, thus furthering their career, whilst at the same time allowing the employer to ensure that the employee undertakes training which will help the employee be more productive at work, increasing the businesses productivity, innovation and business performance.

Employees would be able to request "time to train" to address a particular skills need, for example working with spreadsheets, as well as full qualification programmes such as NVQs.

How?

The Government proposes that the procedure currently used for flexible working requests will also be used for "time to train requests". This will enable an employer to implement the new right using the procedures they already have in place to manage flexible working requests.

The right to request time to train would give an established employee (those with at least 26 weeks continuous employment) the right to request time away from their mainstream duties to undertake relevant training. Employers in both the public and private sectors would have to consider the request seriously but are not obliged to grant the request; they could turn it down if they felt that there was a good business reason to do so.

The Government proposes that an 'employee' will mean someone who has entered into or works under a contract of employment or where they are considered to be 'employees', volunteers should be also be covered by the new right.

Employees will have to make their requests in writing identifying: exactly what training it is they want to undertake; what qualifications (if any) they would receive; the amount of time they are requesting; when and how they would like to undertake the training; and how the training would serve to benefit the businesses needs and the employees needs.

The Government proposes to limit the number of requests that an employee can make to one in any 12 month period.

It is proposed that an employee would be able to ask that they are accompanied to any meeting with their employer and that there would be no limitation as to who that person might be.

Once an employer has received a request for time to train and has given it serious consideration, the employer will be entitled to refuse the request for one or more of the acceptable business reasons. It is thought that that the list of acceptable business reasons will be an adaptation of the current business reasons which exist for flexible working requests. Examples might include:

• The burden of additional costs;
• Detrimental affect on ability to meet customer demand;
• Detrimental impact on quality/performance; and
• Inability to reorganise work among existing staff.

If the employer grants the request it would then be down to the employer and the employee to together agree how much time is taken off work to enable the employee to obtain the necessary skill/qualification.

If the employer refuses the request it is proposed that employees would have the right to appeal to their employer and following that to an Employment Tribunal (ET). Appeals to the ET would only be allowed if the employer has followed the incorrect procedure or where the employer has made a decision based on incorrect facts. It is thought that the ET will have the power to order that the employer re-consider its application or make an award of compensation within certain defined limits.

The Government estimates that there are up to 22 million employees in England who could potentially benefit from the introduction of time to train. The estimate is that approximately 400,000 employees each year will make a request for time to train and that some 300,000 requests will be granted.

Comment

Given the structure is based upon that used for flexible working time requests, most employers should have very little difficulty implementing the procedure when and if it comes in as suggested in 2010.

Of course there will be costs associated with "time to train", for example, where the business has to arrange additional staff to cover for the employee's absence or where the business chooses to pay for the employees training course. Large companies with thousands of employees are likely to find themselves dealing with "time to train" requests on a weekly if not daily basis.

However, employers will not have to bear such costs in the event that they cannot afford them as the acceptable business reasons should provide the employer with a legitimate reason for not granting the employee's time to train request.

Source

Time to Train, Consulting on a new right to request time to train for Employees in England, June 2008.

ACAS PUBLISHES DRAFT GUIDE TO 'DISCIPLINE AND GRIEVANCES AT WORK'

The Employment Bill, published in the House of Lords on 6 December 2007, is expected to receive Royal Assent this Summer. One of the proposals of the Bill is to abolish the statutory disciplinary and grievance procedures. This proposal, it is understood, is to be implemented in April 2009. Acas' current statutory Code of Practice on discipline and grievances will inevitably be affected by the changes proposed by the Bill. In light of this, Acas published a new draft Code in May 2008 and has now, as promised, published draft guidance on how to deal with disciplinary and grievance issues in the workplace. The guidance will have no status in the Employment Tribunals but is intended to complement the new Code, providing advice to employers from Acas' own experiences in dealing with employee issues.

The guidance provides practical advice on key points to consider during disciplinary and grievance procedures, the rules to be followed in order to deal with issues fairly and effectively and alternative methods of resolving matters such as informal internal assistance or mediation. The guidance highlights the importance of introducing rules and procedures into the work place and includes samples for your own use, together with sample letters to be used throughout the disciplinary process. The guidance also provides helpful information on the specific areas of law covered by the Human Rights Act 1998, Data Protection Act 1998 and the Disability Discrimination Act 1998 and specific advice about dealing with absence.

The draft guidance can be found at www.acas.org.uk and any comments you may have on the guidance can be emailed to DGguide@acas.org.uk by 25 July 2008.

The Employment Bill also proposes a number of other changes including giving Employment Tribunals the discretion to increase awards by up to 25% if an employer unreasonably fails to comply with a Code of Practice and extending Acas' powers of conciliation (including removing the fixed conciliation periods).

If you would like any help or advice in producing your own disciplinary and grievance policies or reviewing your existing policies, please contact us at noremp@steeleslaw.co.uk.

DAMAGES FOR WITHDRAWAL OF AN OFFER OF EMPLOYMENT

In cScape Strategic Internet Services v Toon UKEAT/0087/08 the Employment Appeal Tribunal (EAT) have considered an individual's rights where an offer of employment is withdrawn before the individual starts work.

Facts

On 15 May 2007 cScape and Mr Toon signed a contract of employment which was due to come into effect on 23 July 2007 when Mr Toon's employment was due to commence.

On 24 May cScape wrote to Mr Toon advising him that it was unable to honour the contract of employment due to circumstances beyond its control.

cScape advised Mr Toon that it would be honouring the contract by providing him with one week's notice - that being the notice required during the first 3 months of employment whilst Mr Toon would have been on probation.

Mr Toon went to the Employment Tribunal (ET) claiming breach of contract stating that he was entitled to 1 month's compensation in lieu of notice - the notice period to which he was entitled once he had completed his 3 month's probation - arguing that technically he was not dismissed during the first three months of employment.

The ET upheld his claim interpreting the wording of the contract of employment very literally. The ET determined that Mr Toon's contract was not terminated within the first 3 months of employment and therefore the provisions of the probationary clause did not apply. The ET awarded Mr Toon with one month's notice.

EAT

The EAT found that the ET had fundamentally erred in law in coming to its conclusion. The EAT found that cScape had committed an anticipatory breach of contract i.e. it had expressed a firm intention in advance of the performance of the contract that it would not perform the contract at all. Mr Toon was therefore in a position to accept the anticipatory breach and claim damages.

The EAT felt compelled to assume that cScape would have performed the contract in a way most advantageous to it. Under the contract it was open to cScape to terminate the employment contract with one week's notice during the first 3 months. Accordingly, Mr Toon was not entitled to the more generous notice of 1 month.

Comments

The EAT decision is clearly beneficial to employers. It makes it clear that provided the employer gives the employee notice of its intended breach any damages would be assessed in favour of the employer who could be assumed to perform the contract in the way most advantageous to it i.e. by applying the shorter notice period.

Where an employer withdraws an offer of employment the employee will be unable to rely on the literal wording of the contract where an anticipatory breach of the employment contract has occurred.

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