The Conservative government was dedicated to increasing employer participation in workplace training, evidenced by the introduction of the Apprenticeship Levy, which was aimed at encouraging businesses to expand their apprenticeship programmes and increase their spend on training.
They also invested a significant amount of resources in improving the quality of apprenticeships, introducing new apprenticeship standards, setting minimum durations on the terms of apprenticeships and off-the-job training required and establishing the Institute for Apprenticeships & Technical Education to monitor apprenticeships generally.
The new Labour government (the Government) has not announced any plans in contravention of the drive for apprenticeships and has recognised that apprenticeship numbers have “plummeted” leading to a widespread skills shortage. The Government plans to address this by guaranteeing post-16-year-olds with training and/or an apprenticeship.
The Government also plans to reform the Apprenticeship Levy, together with Skills England, to create a flexible ‘Growth and Skills Levy’ that offers value for money-qualifications.
Legal rights and responsibilities when employing apprentices
With a drive towards higher intakes of apprentices, it is important that employers are aware of their legal rights and responsibilities and those that the apprentices enjoy during their training.
Previously, there has been three different ways of documenting an apprenticeship in England:
- A contract of apprenticeship – the oldest form of apprenticeship;
- An apprenticeship agreement – a statutory form of apprenticeship introduced in 2011; and
- 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 that is in place with the apprentice largely depends on the wording of the agreement. 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 these specific provisions, it will be deemed to be a contract of apprenticeship rather than a form of apprenticeship agreement.
Contracts of apprenticeship are now deemed unlikely to arise because employers may be criminally liable where they describe a course and/or training as an apprenticeship if it is not a statutory apprenticeship. Moreover, apprentices enjoy enhanced rights, especially in relation to termination of employment, under contracts of apprenticeship. Employers may find themselves in a position where they are unable to terminate an apprenticeship where the apprentice has been employed under a contract of apprenticeship.
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 in that their contract cannot be terminated unless the employer can prove that the apprentice is “unteachable”, which is a high threshold to meet.
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 compliant with legislation and that they do not accidentally employ an apprentice under a contract of apprenticeship.
Key points for employers
It is imperative that you check that any apprenticeships you offer comply with the relevant provisions so as to avoid criminal liability.
You should consider reviewing the documentation you give to new apprentices to ensure that you are not employing them under a contract of apprenticeship and seek legal advice on whether your apprenticeship agreement contains all the mandatory clauses.
Employers can access guidance on apprenticeships on the Government’s website, from the Education and Skills Funding Agency (ESFA) and from the Institute for Apprenticeships and Technical Standards (IFATE) in relation to the key aspects of the legislation, which can assist you.
How can we help?
Chloe Hickling is a Trainee Solicitor in our expert Employment Law team.
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 team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online enquiry form.
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