Apprentices & Employment Law: Understanding their legal status

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Apprenticeships are like the ‘little black dress’ of the employment world; they never go out of fashion. Indeed, the Government is keen to create some 3 million apprenticeships by 2020.

An apprenticeship as a concept has existed since the thirteenth century in the days of ‘master and servant’ type arrangements. In the modern day, apprenticeships are work-based training programmes which lead to nationally recognised qualifications. This allows individuals to develop skills by combining practical experience with academic training.

Employing an apprentice can be a great way to harness and develop new talent for your business. If you are having difficulty recruiting, “growing your own” may be a practical and attractive alternative.

With so many employers providing apprenticeships, it is important to be clear on their legal status.

What is an apprentice?

  • Apprenticeships are open to all persons aged 16 and above and are available at intermediate, advanced and higher degree level. They will be for a fixed term (usually between one to four years) and/or until a level of qualification is reached.
  • In general, apprentices work for at least 30 hours a week with a period of any working week spent at a college or a training provider. They are entitled to their own specific minimum hourly wage rate and the training element of the apprenticeship is usually fully or partially Government funded.

What legal status do apprentices have?

Until fairly recently, the law relating to apprenticeships was governed by developed case law. There was a single legal form of apprenticeship, a “contract of apprenticeship”.

The introduction in 2011 of the Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA) heralded a new legal form of apprenticeship, an “apprenticeship agreement”.

Unfortunately, since then successive governments have meddled with the ASCLA framework to the extent that we now have the following various types of apprenticeship agreement available to use, depending on where and when they were entered into:

  • The ‘traditional’ contract of apprenticeship.
  • Apprenticeship agreement.
  • Approved English apprenticeship agreement.

Can you treat apprentices as “normal” employees or do they have additional rights?

While an apprentice will be an “employee” (with all the subsequent rights) under all three forms of apprenticeship, there are important differences between them, most importantly in relation to dismissal.

The traditional ‘contract of apprenticeship’ does not need to be in writing or even state that it is an apprenticeship. However, apprentices working under this old style contract enjoy significant levels of legal protection. For example, unless a business is closing down completely, case law suggests that old style apprentices can’t be dismissed unless they are “unteachable” or their conduct “renders it impossible” to teach them; a very high threshold for an employer to get over in the eyes of a court.

If a traditional apprenticeship contract is terminated early for any other reason, an apprentice is entitled to seek compensation for the loss of wages for the remainder of their apprenticeship period as well as potentially the loss of their future prospects and earnings. In addition to which, ‘old style’ apprentices cannot be validly selected for redundancy ahead of other employees and will be entitled to compensation in much the same way. Businesses are therefore wise to avoid wherever possible from entering into this type of arrangement.

In order for an agreement to be either an apprenticeship agreement or an approved English apprenticeship, a number of requirements under ASCLA must be satisfied dependant on the location (England or Wales) and sector of the business. 

Unlike a contract of apprenticeship, there are prescribed criteria under the provisions of ASCLA which an agreement must include to be either an apprenticeship agreement or an approved English apprenticeship agreement. An employer must be careful to ensure that all of those conditions are met otherwise the ‘old style’ apprenticeship contract will have been unintentionally created instead with all of the associated termination difficulties that it brings.

In the event that there is a dispute over the legal status of a particular apprenticeship it will be for the courts to determine which form of apprenticeship is in place. The form of the agreement and whether it complies with the ASCLA conditions will be their key area of focus. Specific advice should, therefore, be sought in relation to entering into agreements under ASCLA well in advance of doing so.

Provided it is entered into correctly the biggest advantage in using an ASCLA apprenticeship agreement, as far as a business is concerned, is that these apprentices can be treated like any ordinary employee and do not have any special legal protection when it comes to contemplating termination during their period of apprenticeship. This means that they can be dismissed for poor performance or misconduct provided a fair procedure has been followed.

Please contact a member of our Employment Law team if you have any questions or queries about this or any employment issue.

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