Committee (3rd Day)

Part of Apprenticeships, Skills, Children and Learning Bill – in the House of Lords at 6:45 pm on 29 June 2009.

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Photo of Baroness Sharp of Guildford Baroness Sharp of Guildford Spokesperson for Innovation, Universities and Skills 6:45, 29 June 2009

I shall speak also to Amendments 84 to 88. All these six amendments are probing amendments, dealing with different aspects of this issue of time off for study. Amendment 83 is about what happens if a request for time off for study is turned down and whether there is a right of appeal. New Section 63I allows the employee the right to complain to an employment tribunal if he thinks that the employer has not acted in accordance with regulations, but the Bill contains no provision to guarantee a right of appeal. The nearest thing that we get is in new Section 63I(3)(a), which implies that a decision may be referred to an appeal, but the language is obscure. The purpose of the amendment is to ask the Minister to tell us, in relatively plain English, precisely when an employee has the right to appeal an employer's decision.

Amendments 84 and 85 seek to clarify new Section 63F(5) and (6). Subsection (5) says:

"The employer may refuse a section 63D application only if the employer thinks that one or more of the permissible grounds for refusal applies in relation to the application".

It is what the employer thinks that is important here; subsections (5) and (6) refer to what the employer thinks. Amendments 84 and 85 seek to insert the word "reasonably" in relation to what the employer thinks.

We put the amendments forward in Committee in the other place, but we were not satisfied with the Minister's arguments. First, the Minister argued that since the grounds on which employers may refuse a request are already very extensive, asking whether the employer has reasonable grounds to think that he or she meets the permissible grounds for refusal adds an extra dimension of uncertainty. Secondly, the Minister argued that these provisions are modelled on the provisions relating to requests for flexible working hours, which contain similar provisos and grounds for refusal but have no requirement for the employer to have reasonable grounds for thinking one way or another. The flexible working time rules have worked well. If an employer turns down a request he or she has to explain to the employee why they have done so, and, by doing so, inevitably has to set out the grounds for refusal. If those are based on incorrect facts, the employee has the right to challenge them. Nevertheless, that still leaves us with the fact that the right to request time off for training, like the request for flexible working time, remains a limited right. It is a right to request training but not to receive it.

We worry about those employers who do not value training. We know that they need to be nudged to do better and that they will be all too ready to raise problems in relation to meeting consumer demand or reorganising staff duties. As the grounds for refusal are already so wide we need the test of reasonableness. That is why we urge the Government to consider whether it should not be in the Bill.

Amendment 86 again raises the issue of what is reasonable. Here we are looking at the burden of additional costs the employer would have to meet if the employee were allowed time off for training. We propose that the employer should be asked to do a cost-benefit analysis before turning down a request on cost grounds and to show that the burden of additional costs would be greater than the value the firm would derive from the training the employee wants to undertake. Again this was debated in the other place. The Minister argued that it would inhibit the use of the additional costs argument unhelpfully because employers would use it only when they were able to show that additional costs were greater than any value gained from study, and that if that were the case that they could also call in aid new Section 63F(7)(a), that the proposed course of study would not improve the business's performance, or new Section 63F(7)(g), that it would have a,

"detrimental impact on performance".

What the Minister seems to have neglected in that reply is that it is precisely because we think the employer should be doing this implicit cost-benefit analysis that we want the term "reasonable" included. We want employers to think seriously about training and the value it gives to them. It is all too easy to claim that it will create an additional costs burden. The amendment forces them to think a little about the other side of the equation.

Amendment 87 relates to new Section 63F(7)(c) about the effect of meeting consumer demand and seeks to insert the word "significant" at the beginning of the provision so that there would need to be a significant detrimental effect on the firm's ability to meet consumer demand. Again we are into the issues of reasonableness. If the employee is, say, a teacher, and as a result of training would be better able in the long run to do the job, how do you balance the short-term detriment in terms of the cost—for example, the fact that the class has to have an extra supply teacher—against the longer term gain in terms of having a better teacher.

Finally, Amendment 88 seeks to probe precisely what is meant by new Section 63F(7)(h) and the term "insufficiency of work". In Committee in the other place, the Minister said that the Government did not want there to be any suggestion that an employer would have to provide alternative work for the employee at relevant times such as where the employee suggested a change in their current working arrangements to accommodate training. But nobody has suggested that. What we want to know is what constitutes an "insufficiency of work". Will the Minister clarify how that can be used as a ground for refusal? I beg to move.