01/04/2014

Apprentices – Key employment law considerations

In recent years, apprenticeships have seen a considerable resurgence, across a wide range of sectors of employers, not least in the legal sector. What may surprise many employers is that apprenticeships can be a somewhat tricky area of employment law because the law hasn’t changed in some respects since the 19th Century. This is particularly so in respect of the termination of the employment/apprenticeship relationship. These are just a few of the frequently asked questions we receive.

WHAT ARE APPRENTICESHIPS?

Apprenticeships are work-based training programmes, which usually require the apprentice to be released from work during part of the working week to attend college. The costs of the training are usually wholly or partially government funded. Apprenticeships tend to be either fixed-term in nature or last until a set level of qualification is reached.

WHAT IS AN APPRENTICE’S EMPLOYMENT STATUS?

An apprentice is classed in law as being an employee, so a statement of terms and conditions should be provided to the apprentice within 2 months of them starting work in accordance with s.1 ERA 1996.

ARE ANY PARTICULAR CONTRACTUAL TERMS REQUIRED?

If the apprenticeship is fixed-term in nature, this should be clearly stated within the apprentice’s contract. Any terms and conditions relating to training costs and with regard to attendance at college also ought to be included within the contract.

You should seek legal advice if you are unsure as to what needs to be included in a contract of employment, or in respect of any specific contractual terms.

HOW MUCH DO I NEED TO PAY AN APPRENTICE?

Apprentices are entitled to the National Minimum Wage. This differs dependent upon the apprentice’s age and stage of their apprenticeship. The current rates (from 1 October 2013 to 30 September 2014 are as follows:

  • Apprenticeship rate (if under 19 or in the first year of apprenticeship) – £2.68
  • Age 19-20 (and not in the first year of apprenticeship) – £5.03
  • Age 21+ (and not in the first year of apprenticeship) – £6.31

CAN I MAKE AN APPRENTICE REDUNDANT?

In the event of a business slowdown apprentices actually enjoy a special form of protection in that they cannot be made redundant. The only exception to this is if the business actually closes down entirely.

CAN I DISMISS AN APPRENTICE FOR MISCONDUCT?

An employer has less scope for dismissing an apprentice employed under a contract of apprenticeship than an ordinary employee. Misconduct in the normal employment context will not be sufficient, unless the apprentice’s actions are so extreme that the apprentice is effectively “unteachable”.

If you are looking to dismiss an apprentice on misconduct grounds, we recommend that you seek legal advice. In the event of unfair or wrongful dismissal, an apprentice can claim enhanced damages for the termination of their apprenticeship, which can include loss of earnings for the remainder of their fixed term and damages for the diminution of future employment prospects, which could prove to be substantial.

CAN I DISMISS AN APPRENTICE ON PERFORMANCE GROUNDS?

Yes – it is possible to performance manage an apprentice, but you must be able to document that there are performance issues. This can be quite tricky as ultimately the role of the employer is to “train” up the person who does not have any prior experience. The question then arises as to why the performance level is below par: whose fault is it? To fall foul in procedural terms could potentially lead to a significant claim for compensation, as mentioned above.

If you are in any doubt about apprentice’s rights and your obligations, you should seek legal advice from one of the Employment Team.