Education and Skills Act 2008

Education and Skills Act 2008

2008 CHAPTER 25

Commentary on Sections

Local education authority

Legal background

Part 1: Duty to participate in education or training: England

Chapter 3: Employers

Sections 21 to 26: Commencement of employment

30. Section 21 places a duty on employers not to employ a person unless they have taken reasonable steps to check that the person has made appropriate arrangements to participate in relevant education or training. The duty does not require the employer to check that the arrangements cover relevant training or education that is sufficient (that is enough hours in the relevant period). For example, an employer would check that a potential employee could produce a letter from a learning provider indicating that he or she had enrolled on a course. The section provides for an exception to this if the contract is made conditional on the person making arrangements to undertake appropriate education or training, in which case he or she must have done so before employment commences. This enables an employer to have a role in a young person’s decision about the type of education or training to pursue.

31. If an employer does not fulfil this duty, section 22 provides for a local education authority to serve a penalty notice on the employer and sets out the circumstances in which the notice can be given. It provides for the amount of the financial penalty to be determined by regulations, and sets out the requirements for what is included in the notice. Should the employer fail to pay the financial penalty, the local authority could pursue the debt in a county court.

32. Section 23 provides for an employer to object to a penalty notice within two weeks of being given the notice under section 22. The local education authority must consider the employer’s notice of objection and either withdraw the penalty notice, reduce the amount of the penalty (if the amount was incorrect) or confirm the penalty notice. The local education authority must then notify the employer of its decision within a prescribed time period.

33. Section 24 enables an employer to appeal to the First-tier Tribunal against a penalty notice given under section 22. The employer could appeal on the grounds that: they did not commit the contravention stated in the penalty notice; the circumstances in which the contravention took place make the penalty notice unreasonable; or the amount stated in the penalty notice is too high. Any appeal must be made within the time limit set by the Tribunal Procedure Rules under paragraph 4 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007. The First-tier Tribunal has the power to: allow the appeal and cancel the penalty notice; replace the penalty with a smaller amount (if the amount was incorrect); or dismiss the appeal. If an appeal has been made, but not yet determined, section 25 provides the local education authority with the power to withdraw the penalty notice. Section 26 sets out the sums that must be repaid to an employer if a penalty notice is withdrawn under sections 23 or 25.