Previous Section Back to Table of Contents Lords Hansard Home Page

The other day in Committee, we had a very good debate about the report produced by the committee chaired by the noble Lord, Lord Filkin, on the burden of regulations on schools. This is not about schools,

29 Jun 2009 : Column 59

but, as was pointed out then, a lot of attention is given to regulatory reform in the private sector, but not enough in the public sector. This is largely a question of regulations on the private sector, but nevertheless, I have quite a lot of sympathy with the noble Viscount, because the number of regulations proposed seems excessive.

Lord De Mauley: We support the right of employees to ask for time to train, but I share my noble friend's concerns about the bureaucratic burden in this section. I was therefore delighted to hear the words of the noble Baroness, Lady Sharp, who made a similar comment. It is to be hoped that most requests would have a clear benefit for both the employer and the employee. There will, however, doubtless be occasions when this cannot be the case, so I look forward to the Minister's response as to what should happen in these situations.

Lord Young of Norwood Green: Amendment 81 would have the effect of allowing employees to request training other than that which would improve their effectiveness at work and the performance of their employer's business. We kept this fairly tight, because we did not want to make too much of a burden. Amendments 80 and 82 would remove many of the requirements with which an application must comply in order to qualify under the new Section 63D, including the requirement for a Section 63D application to state that it is being made under that section. While we understand the desire of the noble Lord, Lord De Mauley, to reduce bureaucracy-we are with the noble Viscount, Lord Eccles, on that one-this would have the effect of allowing many general requests concerning training which would no longer be limited to improving their effectiveness at work and the performance of the employer's business. It would allow these much more general requests to be captured and it would also risk employers being unclear whether the request had to be dealt with in accordance with the statutory procedure.

On Amendments 80 and 81, we want it to be very clear to employees that they can make requests under these provisions only for study or training which will improve their effectiveness or business performance. The close linking of this right with business-relevant skills was set out in our consultation paper and was strongly supported in the responses we received. We do not agree that it is right to remove this link to business-relevant skills and improving the performance of the company, as the amendment would do. I accept that requests could still be refused if they were considered not to increase the employee's effectiveness at work or improve the performance of the employer's business, as Section 63F(7)(a) enables refusal on this basis and would remain unaltered. However, the amendments would mean that employers would have the burden of considering a potentially significant number of requests under this process, which would not be likely to benefit their business.

I turn to the concerns expressed by the noble Viscount, Lord Eccles, which the noble Baroness, Lady Sharp, endorsed, about the burden of regulations. I make it clear that we do not need a separate set of regulations for each regulation-making power. It is common for one set of regulations-that is, statutory instruments-to

29 Jun 2009 : Column 60

be made using several different powers. That is why we think that only two or three sets for Clause 39 will be needed.

Our primary objective is to persuade or encourage those employers who currently do not engage with any training. They are our primary target. We made it clear in the consultation process that we were talking about business-relevant skills, which would improve the employee's effectiveness or the performance of the employer's business. We want it to be clear to employers which requests have to be dealt with under the statutory procedure and which do not. We wish to maintain the position that a Section 63D application must state that it is one. It is important to recognise that these provisions are not intended to, and do not, replace existing systems for considering training needs. When these are available, employees can, and, we strongly suspect, will, continue to use them. When good systems are not available, employees will, through this legislation, have a route to request and discuss their training needs with their employer. A request for training that will improve performance or benefit the performance of the company, if it were refused, would have to be justified.

I trust that, in the light of those comments, the noble Viscount will withdraw his amendment.

Viscount Eccles: I thank the Minister for his reply and thank my noble friend and the noble Baroness, Lady Sharp, for joining in the debate. I should probably have done more to explain what my amendment would do. If it were passed, it would probably lead to a need to rewrite Part 6A, because I doubt that the wording of my amendment would stand up on its own.

The Minister's last argument seemed to be exactly what we have been saying-that, to the maximum extent possible, employers who already have good systems with which their employees are content, which are positive and productive for both, should in some way be left loose enough not to be subjected to the full rigour of Part 6A. In that connection, I have looked at new Section 63D(8), which comes right in the middle of the clause and says:

"Nothing in this Part prevents an employee and an employer from making any other arrangements in relation to study or training".

Is it right to interpret that to mean that it is entirely a matter for the employee to decide whether he or she starts the whole process? That is how Part 6A reads. Therefore, it might be helpful if we had the Minister's assurance that employers and employees are entirely free to agree whatever they want to agree about additional study and training, without reference to this part.

6.45 pm

Lord Young of Norwood Green: I assure the noble Viscount that it is absolutely the right of employees to initiate the process and it is entirely up to them to agree what is acceptable, provided that it is clearly acceptable to both parties.

Viscount Eccles: I am grateful to the Minister for that assurance. It might be helpful if that provision was at the beginning of Part 6A, rather than where it is placed at present.

29 Jun 2009 : Column 61

I accept that regulations can be consolidated, but each individual statutory instrument gets longer. I still feel strongly that there is too much power in the hands of the Secretary of State to change the rules of the game. New Section 63E(4)(c) gets down to the detail of saying,

The thinking behind the powers of the Secretary of State to make regulations has been very loose on this occasion and needs to be tightened up. I may well feel that that is sufficient reason to come back to the subject on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment 80 withdrawn.

Amendments 81 and 82 not moved.

Amendment 83

Moved by Baroness Sharp of Guildford

83: Clause 39, page 19, line 41, at end insert "which shall include at least a right to a first decision on the application and thereafter a right to appeal against that decision"

Baroness Sharp of Guildford: 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

29 Jun 2009 : Column 62

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,

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

29 Jun 2009 : Column 63

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.

Lord De Mauley: As the Bill stands, the Government are attempting to introduce legislation that would give employees a right to request time to train. The Explanatory Notes are clear that the employer must then consider this application and it must be accepted unless one of the reasons for refusal allowed by the legislation applies. These reasons are then laid out in new Section 64F(7) on page 20 of this draft of the Bill.

We are generally in favour of the principles behind the Government's intentions in this part of the legislation. We agree that people should be allowed and, indeed, actively encouraged to take advantage of opportunities to gain further training and skills from within their employment.

However, there are situations where, perhaps despite the best intentions of employers, these opportunities may not be forthcoming. In some situations a less enlightened employer might prefer to let a talented and hard-working employee continue in an existing role, rather than allow the individual the room to feed ambition and train to a higher level. Such an employer might be reluctant, for example, to let a good waitress or waiter train to be a restaurant manager because of the risk that the replacement waiting staff may not be quite as efficient or effective as the waitress who is looking to equip herself for promotion. Of course, no one can condone this attitude. Nevertheless, we should not overexaggerate this risk. The consultation response, published by the department last year showed that only 57 per cent of employers in England felt that time to train would help skills development in their organisation and that only 28 per cent said that the introduction of the new right would cause them to alter their behaviour at all. The document published by the department stated:

"These relatively low figures are largely explained by organisations' existing positive attitude and commitment to training rather than because of any particular reservations about the time to train proposals".

We are of the opinion that employees should have the right to a serious conversation with their employer about their skills development, as the consultation document stated, and, as I have said, we support the right to train. However, we would be cautious about extending our full support to all these amendments as it is also important to ensure that the administrative burden on employers should be kept to a minimum.

The Institute of Directors-I declare an interest as a member-is increasingly concerned about the regulatory approach the Government are taking to ensure that the UK becomes a world leader in skills. It comments that these proposals add to the pipeline of impending regulations that will add to the administrative burden on employers and that at a time of recession this is spectacularly unhelpful. I would perhaps not go quite that far. We think that the right to request time to train is an important part of increasing skills and of allowing

29 Jun 2009 : Column 64

every employee to reach his or her potential. We do however want to ensure that at the same time employers are not disadvantaged by these proposals, especially given the current economic situation.

While it is right that employees should be able to request the time to train, it does not seem right that the permissible grounds for refusal should be so narrowed that it becomes very difficult for an employer to refuse at all.

Amendments 83 to 85 seem very sensible. If an employee has made a request for time to train, it is right that the employer should at least have to make a decision in response. There may also be situations where a right to appeal is appropriate. Perhaps the Minister will inform us as to whether any research has been carried out into the administrative impact of inserting a right to appeal against the decision. Moreover, the injunction on the employer to act reasonably as regards the grounds for refusing an application is difficult to argue with.

However, Amendments 86 to 88 redefine the permissible grounds for refusal by considerably narrowing the ability of employers to find a way to refuse the application, even if they are struggling to meet the demands. I fear that these last amendments assume that all employers will be searching for a way to get out of offering training. I do not accept that that will be the case. Proper training is essential in any business. A business that does not reskill and retrain its staff will not be successful. I very much look forward to the Minister's response.

7 pm

Baroness Howe of Idlicote: I have considerable sympathy with these amendments but, like the noble Lord, Lord De Mauley, I think some are better than others. It takes me back very much not just to "train to gain", which was clearly a sensible idea, but also to the right the European Union directive gave women with family responsibilities to request flexible working that, as we all know, has been extended more and more and seems to be quite beneficial for employers.

Certainly, the right to be "reasonable" on the basis that you make a decision seems absolutely essential. Maybe the Minister will say that it is not necessary, but "reasonableness" in all these things, where there is a pretty wide degree of discretion, is, surely, something that we should all be in favour of. I am not necessarily convinced by all these amendments. I take into account what the Institute of Directors has to say, and it has a point. Nevertheless, we should be quite sympathetic to these amendments.

Baroness Wall of New Barnet: I, too, have some sympathy with a number of the amendments raised by the noble Baroness, Lady Sharp. However, I have an issue with Amendments 87 and 88. Most organisations have a very clear understanding of whether their performance is being detrimentally affected. Having "significant" in the amendment raises the dilemma of what this means and how it would be measured. It is usually how the order book is placed and all the rest of it. In my years as a trade union official and working with a sector skills council, I have never experienced that there has been a necessary adjective that needs to be there.

29 Jun 2009 : Column 65

There is something a bit perverse about changing "insufficiency of work" to,

as though the employer was conniving in some way not to have this work. Most businesses, whether small or large, operate in a transparent way, where you know whether there is business coming in or not. I personally have a great deal of difficulty with both of these amendments in particular.

Viscount Eccles: It is precisely this kind of debate that makes me wish that we had a general duty on employers and much less detail in the way that that general duty should be carried out.

Lord Young of Norwood Green: 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

29 Jun 2009 : Column 66

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.

Next Section Back to Table of Contents Lords Hansard Home Page