We are employing a young person (i.e. someone who is not yet 18 years’ old) in England. In relation to the requirement for 280 guided learning hours, would ‘on the job’ training count for these purposes if there is no formal qualification at the end of it?
When it comes to the duty in England for a young person to participate in education and training, a person has such a duty if they:
- have ceased to be of compulsory school age
- have not reached the age of 18, and
- have not attained a ‘level three qualification’ (two A-levels, or various other broadly equivalent qualifications)
The duty may be satisfied by participating in appropriate full-time education or training, or training in accordance with a contract of apprenticeship or an apprenticeship agreement
It is also possible for 16 and 17-year-olds to comply with the duty while they are working. Where the individual is neither in full-time education or training nor training in an apprenticeship, the duty can instead be satisfied by being in ‘full time occupation’ and participating in ‘sufficient relevant training or education in each relevant period’.
Full time occupation
Being in ‘full-time occupation’ in this context means:
- working under a contract of employment, or as a self-employed person, or otherwise than for reward (i.e. as an unpaid volunteer), or as the holder of an office
- working at least 20 hours per week, not including any time during which they are participating in ‘actual guided learning’ (which constitute relevant training or education, and in which the young person participates each week during normal weekly working hours), and
- which contract or arrangement is, or is expected to be, of at least eight weeks’ duration
Relevant training or education
For those in full time occupation, the duty is to participate in relevant training and education, which is defined as training or education towards a ‘regulated qualification’ provided by a course or courses.
A regulated qualification is defined in section 130 of the Apprenticeships, Skills, Children and Learning Act 2009 and means, in general terms, in England: an academic or vocational qualification awarded or authenticated in England, which is not a foundation degree, a first degree or a degree at a higher level.
Sufficient relevant training or education
For those in full-time occupation, training or education will be deemed ‘sufficient’ if it amounts to 280 hours of guided learning per year, or the equivalent pro rata for shorter periods.
The person will be participating in ‘guided learning’ for the purpose of meeting the sufficiency requirement if they are:
- being taught or given instruction by a lecturer, tutor, supervisor or other appropriate provider of training or education, or
- otherwise participating in education or training under the immediate guidance or supervision of such a person
Time spent on unsupervised preparation or study, whether at home or otherwise, does not count for this purpose.
On the job training
To meet the requirement that the training must, in the first instance, be ‘relevant training or education’, the nature of the training must comply with the requirements of section 6 of the Education and Skills Act 2008 (ESA 2008).
If it does, then the sufficiency of that training over the relevant period will depend on the number of hours of guided learning the person has in that period, ie learning that is directly administered by a lecturer, tutor etc., or under the immediate supervision or guidance of such a person.
Whether there is any duty on the employer
The ESA 2008 places certain obligations on the employers of employees to whom the duty to participate in education and training applies, which are designed to facilitate compliance with ESA 2008.
However, save for one minor exception, the employer provisions have not yet been brought into force.
If implemented, the employer provisions would require employers (only in respect of individuals with employee status, not those with worker status) to:
- check before employing a new recruit to whom the duty applies that they had made appropriate arrangements for education or training
- allow (or in some cases allow to a reasonable extent) such an individual, once they had been taken on, to participate in the appropriate training or education
Until the employer provisions are brought into force, there is no obligation (in England) on an employer to facilitate a young employee’s participation in relevant education and training in compliance with the duty in ESA 2008, s 2.
This contrasts with the situation for relevant 16-18-year-olds in Wales and Scotland, who retain a right to paid time off for study and training.
As always, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
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