The Government has shown great commitment in recent times to increasing employer participation in workplace training, particularly with the introduction of the Apprenticeship Levy aimed at encouraging businesses to expand their apprenticeship programmes and increase their spend on training.
The Government has also invested a significant amount of resources in improving the quality of apprenticeships, introducing new apprenticeship standards, setting minimum duration’s on the terms of apprenticeships and off-the-job training required and establishing the Institute for Apprenticeships & Technical Education to monitor apprenticeships generally.
Legal rights and responsibilities when employing apprentices
With a drive towards higher intakes of apprentices, it is important that employers are aware of the legal rights and responsibilities that they have and apprentices enjoy during their training.
There are three different types of apprenticeship agreement in England:
- A contract of apprenticeship – the oldest form of apprenticeship.
- An apprenticeship agreement – a statutory form of apprenticeship introduced in 2011.
- An approved English apprenticeship agreement – a simplified statutory form of apprenticeship introduced with effect from 26 May 2015 in sectors where an approved apprenticeship standard is in force. An apprentice will complete such an apprenticeship if and when they achieve the relevant “approved apprenticeship standard”.
The arrangement in place will largely depend on the wording of the agreement with the apprentice. In order for an agreement to be an apprenticeship agreement or an approved English apprenticeship agreement, it must contain specific provisions.
Where an agreement does not contain those specific provisions, it will be deemed to be a contract of apprenticeship, under which an apprentice will enjoy enhanced rights, particularly on termination of employment. In addition to this, an employer may be criminally liable for wrongly advertising work as a statutory apprenticeship, if it does not satisfy the relevant criteria.
Enhanced rights under Contracts of Apprenticeship
An apprentice engaged under a contract of apprenticeship is an employee with all of the rights an ‘ordinary’ employee enjoys. This contract does not need to be in a particular form or contain specific provisions.
Apprentices engaged under a contract of apprenticeship have enhanced rights compared to ‘ordinary’ employees.
These enhanced rights are summarised as follows:
- Enhanced damages for early termination of contract – apprentices will be entitled to damages for loss of earnings and training for the remainder of the term of their apprenticeship (which could be a number of years), and in respect of loss of future career prospects due to the apprenticeship being terminated. Damages can therefore be significant.
- Misconduct – an employer will only be able to dismiss an apprentice if it can show that the misconduct was severe and extreme enough that it rendered the apprentice effectively unteachable. This is a much higher threshold than the usual employment test.
- Redundancy – unless there is a total closure of business or the business undergoes a fundamental change, an apprentice cannot be dismissed by reason of redundancy.
- Expiry of fixed-term apprenticeship – the expiry of a contract of apprenticeship is a legal dismissal, meaning that where an apprentice has more than two years’ service, an employer must be able to show a potentially fair reason for dismissing them. The employer must follow a fair procedure and show that the dismissal was fair and reasonable in all the circumstances.
Given the enhanced rights that apprentices engaged under a contract of apprenticeship enjoy, it is vital that employers ensure that their apprenticeship agreements are watertight.
How can Nelsons help?
If you require advice regarding your rights and responsibilities when employing apprentices, or assistance with drafting an apprenticeship agreement, please contact a member of our expert Employment Law team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.