Does an employee have the right to not attend a compulsory five-day training course due to home and family commitments? Esther Smith and Matthew Whelan advise.

The question:

Can HR force a staff member to attend a five-day training course? I have a staff member who advised at interview stage they could not go away on courses overnight as his wife works and they have a young child aged two. HR has advised the course is compulsory and I have to advise the staff member to go.

He has always attended courses which he can drive to, however this course is based four hours away and would require four nights away. The course is to learn ‘the company’s way of selling’ and FSA Insurance procedures. My staff member is a very experienced staff member in sales and has already completed FSA Insurance online and passed. I feel I will loose this valuable staff member due to HR’s policies on this matter.

Does my staff member have the right to not attend due to home commitments or is HR correct in advising he needs to attend to work for the company? His contract states that he may be required to travel on company business.

Legal advice:

Esther Smith, partner, Thomas Eggar

I think that the company is probably in a pretty strong position to force the issue on this one should it want to. The request to undergo this training is presumably applied to all staff and, if exceptions are not made for others, why should they be made for him?

The request to undertake this training is a reasonable one in all the circumstances and his continued failure to do what he is reasonably asked to do could result in disciplinary action. However, if you are going to go down this route you should be able to evidence the fact that the course / training cannot be delivered to him in any other format or location that is more suitable for him. You ought also to give him as much notice as possible as presumably his spouse could take holiday during this period to cover the childcare.

So, I have no issue with the HR policy, but if there is a real risk that this employee may walk if pushed over this course, and his departure would be a real concern to the business, it may be worth making an exception for him, if this is the best thing for the company. Whilst the policies and rules are there for a reason, and should be consistently applied, at the end of the day you do need to do what is right and beneficial for the business as a whole.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.

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Matthew Whelan, solicitor, Speechly Bircham

An employer is able to require a staff member to attend a training course as long as this is a reasonable instruction and it does not discriminate in doing so. Given your concerns you do, however, need to think about handling the request carefully given that the employee will not be happy with it.

When requiring a female member of staff to do something which it is difficult for her to comply with because of childcare responsibilities, like attend a training course, you need to be careful not to indirectly discriminate under the Sex Discrimination Act 1975. A male member of staff would probably not be able to rely on indirect discrimination in these circumstances. This is because historically women have assumed childcare responsibilities more than men. There is therefore unlikely to be any disproportionate impact, which is required for indirect discrimination, on men. This does not mean you can accommodate women’s childcare responsibilities but refuse to accommodate men’s. Also, this may be used to challenge your commitment to promoting a work-life balance.

The member of staff will of course scrutinise the reasons for him having to attend the course and you should be prepared to deal with his concerns. It is worth speaking to HR so you can discuss the requirement with the employee in an informed manner.

Unless it is compulsory that he attends the course (for example because of an FSA regulatory requirement) then you need to balance the advantages of requiring him to attend the course against the risk that he leaves (or stays and is demoralised) as a result. You should speak to HR about this and make your concerns clear.

To minimise the risk of him leaving you need to handle the situation carefully and engage with the employee. Ask him about his concerns and whether there is any way that you can compromise to accommodate these. For example, give him as long as possible to make alternative childcare arrangements.

Be careful to look at what has happened in the past – if other members of staff have been shown flexibility and not required to attend the course then this may be something which he will seek to rely on. The reverse is also true – if you show him flexibility then others may expect this in the future.

If the employee refuses to attend then your recourse would be to consider disciplinary action against him, bearing in mind the usual rules and procedures. If you did discipline him then he may seek to rely on any previous promise, for example at interview, that he did not have to go away on courses in the event this required an overnight stay.

Matthew Whelan can be contacted at [email protected]. For further information, please visit Speechly Bircham.

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