Solicitor James Hall provides answers to employers’ questions about the law relating to apprenticeships.
Q What is an apprenticeship?
An apprenticeship is a form of contract of employment, which has the purpose of training an individual in the necessary skills for a role or attaining a relevant qualification.
In recent years, “modern apprenticeships” have become more popular and involve three parties: the worker; the employer; and a third party (generally the Government) providing training for a recognised qualification.
Q How is an apprentice different to a regular employee?
An apprentice will typically be an employee. They will therefore benefit from all related rights, such as the right to claim unfair dismissal and protection against discrimination.
However, an employer has increased responsibilities towards an apprentice, as outlined in more detail below. Additionally, while the primary purpose of a regular employee is to undertake work for the employer, the focus for an apprentice is more on the facilitation of training and undertaking work that may enhance this process.
Q For how long should an apprenticeship last?
Apprenticeships will typically be for a fixed duration. This can range from a number of months to several years, depending on the time reasonably needed to acquire the skills or qualification in question.
Importantly, it is only possible to terminate an apprenticeship early in rare cases, generally only for serious misconduct (as outlined below). In theory, incapacity could be a reason for termination, although the bar for incapacity would be very high and an employer should usually delay the apprenticeship rather than terminate it. If an apprentice has their contract terminated unfairly, they can receive significantly higher than normal damages for wrongful dismissal to compensate them for loss of wages, loss of training and loss of status. If they have the required qualifying service, they can also claim compensation for unfair dismissal.
Apprentices are, though, expressly excluded from the regulations covering fixed-term employment.
Q How much should an apprentice be paid?
Under the current 2011/12 rates, an apprentice should be paid a minimum of £2.60 per hour if they are under 19 years old, or in the first year of their apprenticeship. If they are not in this category, they should be paid the relevant national minimum wage rate for their age.
Clearly, it is at the employer’s discretion if they wish to pay their apprentices more than this.
Q At what age can apprentices start?
Apprentices can start at 15 years old, provided that they have left full-time education. There is no maximum age for an apprentice.
Q Are apprentices entitled to sick pay?
Yes, in most instances. It is only where an apprenticeship is for less than three months that they would not be entitled to statutory sick pay.
However, an employer is able to pay enhanced sick pay at their discretion.
Q Are apprentices entitled to holidays and rest breaks?
Yes. Apprentices come under the Working Time Regulations 1998 and are therefore subject to the same minimum entitlements as other employees.
Although many apprentices attend training courses, meaning that they are only working for the employer for part of the week, they should be considered full-time employees for the purposes of Working Time Regulations, unless their entire apprenticeship obligations are genuinely part time.
Q Under what circumstances can an apprentice be dismissed?
It is only in the most serious cases of misconduct that an apprentice can be fairly dismissed.
The issue is, in essence, whether the conduct of the apprentice is such that it renders them impossible to teach. This could be by way of repeated wilful disobedience of direct instructions and/or a habitual neglect of specific duties. This is narrower than the grounds for gross misconduct as applied to ordinary employees.
It has also been held that an apprentice should not be made redundant, save in cases of workplace closure.
Q What form should an apprentice’s contract take?
Currently, there is no prescribed form of contract. However, an apprentice will be entitled to basic particulars of employment in the usual way. The parties should agree the key terms, such as the duration, pay, training aspects and any other general policies that are applicable.
Q Are there any changes to apprenticeships on the horizon?
Changes are due shortly under the Apprenticeships, Skills, Children and Learning Act 2009. The new legislation will not apply to apprentices in a practical way until the Government produces the prescribed form of contract, which is currently due in April 2012. While the form is unlikely to be radically different to current practice, the legal effect will be that the relationship will be one of a contract for services rather than a strict apprenticeship. The Act also introduces minimum hours of work and learning for apprenticeships.
James Hall, solicitor, Charles Russell LLP
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