Apprenticeships, Skills, Children and Learning Bill

I understand the desire of noble Lords on all sides to get the balance right between employer and employee. That is what we are trying to do. I will see whether I can reassure noble Lords on the balance. Amendment 83 would place on the face of the Bill a requirement for the regulations to be made under new Section 63F(4) to require a right to a first decision on a request for training and a right to appeal against that decision. I reassure the noble Lord that we intend to use the power at new Section 63F(4) to define a process in regulations based on the one already in place for flexible working that would cover first decisions and appeals. Again, I have sent indicative regulations to the noble Lords who have spoken in the debates so far. These regulations would require the employer to hold a meeting to discuss an application within 28 days of receiving it and to provide a decision in writing within 14 days of that meeting. The regulations will also include a right for an employee whose application has been refused to appeal to his or her employer—I stress that—in the first instance. These details are better dealt with in regulations where they can be adjusted more readily in the light of practice and experience. This model, in which stakeholders were consulted, again, follows the one used for the flexible working requests. Amendments 84 and 85 would introduce a concept of reasonableness to the basis on which an employer may refuse an application. As currently drafted, the Bill enables an employer, relying on his or her own judgement and knowledge of his or her business, simply to form a view about whether one of the grounds applies. If these amendments were accepted, an employer could no longer do that. Let us be clear: instead, they would have to consider whether they were acting "reasonably" in forming that view—in other words, to put themselves in the position of an objective outsider and decide the application from that perspective. Including the term "reasonably thinks" introduces a level of uncertainty about the employer’s decision, and creates a more complex and burdensome test for the employer that we think is unnecessary and that we are genuinely trying to avoid. I agree with the comment that the noble Baroness, Lady Sharp, made in her contribution, when she talked about this being a "limited right". It is. In the vast number of circumstance, as the noble Lord, Lord De Mauley, drew to our attention, many employers will not have to worry about this right because they are already training their employees. There are also still a significant number who do not do so. They are the ones who we are trying to address. The example of the teacher that the noble Baroness, Lady Sharp, brought up is the one I would be least worried about in these circumstances. As a school governor, I cannot believe that a request for time to train would be unreasonably refused. I will come to the question about insufficiency and detriment later. Introducing "reasonably" will create uncertainty and will make it more burdensome for employers, rather than looking simply at the grounds that we have defined. In practice, when considering requests, employers would have to consider which of the permissible grounds for refusal are relevant, and why. They would then need to explain this decision to their employee when they notify them of their decision. If the employer is acting unreasonably, it will be difficult to give the necessary explanation in the decision notice, and it would be open to the employee to challenge the decision on the basis that it is based on incorrect facts. That keeps it as simple as we possibly can make it. Amendment 86 would narrow the cost ground of refusal so that it applied only where the costs relating to the training outweigh the value of the proposed training and are an unreasonable burden. In our view, cost considerations may be a legitimate factor in an employer’s decision to refuse an application in a wider variety of cases than that proposed by the amendment, where, for example, employers may simply be unable to meet the costs of covering an employee’s absence, however great the potential benefit to the business. Amendment 87 would mean that an employer could refuse an application only where agreeing it would have a "significant detrimental effect" on the employer’s ability to meet customer demand rather than simply a "detrimental effect" on this ability. While I understand that this amendment is intended to clarify the test, we do not want to try and quantify the level of detriment that would need to apply in order for a request to be refused. It may be that an employee’s absence at that time would put an unreasonable strain on the performance of the business. It may be just a question of timing and something that can be resolved in the future. However, the employer should not have to try to quantify that in the way that is suggested in this amendment by the introduction of the word "significant". Provided that there is some detriment, if it is a level of detriment that the employer does not wish to, or cannot, bear, then it is right that they should be able to decline a request on this basis, just as they can under the flexible working arrangements. I stress that again. We tried to model that procedure so that we are not introducing a fresh procedure. There may be genuine instances where a particular request will have a detrimental impact that employers feel make it impossible to accede to a request, and I have instanced a possible example of that. While we believe that these decisions are best left to employers, there are safeguards in the system—I stress that to the noble Baroness, Lady Sharp—for the employee. As I said, it is a question of balance. The employer will have to explain why the detrimental impact ground applies, and, ultimately, this view could be tested at an employment tribunal. We do not want that to take place; but it could. If an employer was adopting a situation where it thought that it could refuse all requests for time to train and not engage in a proper appeals procedure, some of these may eventually be tested at an employment tribunal. We hope they will not go as far as that, but it will depend on the circumstances. Amendment 88 would have the effect of redefining one of the permissible grounds for refusal set out in new Section 63F(7). Rather than specifying "insufficiency of work", it would refer to inability to provide work during the periods that the employee proposes to work. We do not want employers to be obliged to find something for the employee to do at times when the employee proposes to work in order to accommodate training. Instead we want the employer to consider in the light of the current business situation how much work is available during the periods proposed. That is the correct position. No doubt we will find that employers are prepared to be flexible in many cases. As I said, this new right is modelled closely on the flexible working arrangements which employers are familiar with and which we know work well. That is important. We are not introducing a new procedure here; we are introducing something of which both employers and employees already have experience. This close alignment between the two rights has been welcomed by stakeholders and was supported in the consultation responses as something that would be helpful to employers. We therefore wish to maintain this, and we do not want to create unnecessary differences between the two rights that have the potential to cause confusion. On the reasonableness test, it was asked whether employers who do not offer training will not simply refuse applications. We think that it may well trigger a discussion about training and that employers may well see the advantages of training. We think that the balance is correctly set where the employee can appeal on grounds of procedure or incorrect facts; we think that is the right way to approach it. In these circumstances it is best for both the employer and the employee to keep it simple and modelled on existing procedures. Therefore, in the light of the explanation and assurances given, I would be grateful if the noble Baroness would consider withdrawing the amendment.