Policy clinic: Apprenticeships

Once upon a time apprenticeships involved seven years of learning from a master-craftsman under the auspices of a guild qualification. One of the leading employment law textbooks of the day set out the relationship between ‘master and servant’. And although this system has all but broken down, the key elements of the outdated relationship persist: the core purpose is training, taking place over a fixed term, during which the employer has restricted freedom to dismiss.

While increased funding and incentives and the desire to plug the skills gap are attracting more employers back to this model of engagement, they need to be fully aware of the implications of the relationship.

For an apprenticeship to be formed it must be recorded in writing – unlike a contract of employment, which can come into being as a result of an oral agreement. The fixed-term nature of the relationship needs to be understood.

Unlike a normal employment relationship the employer cannot bring the contract to an end, for example, because of a downturn in work or a change in funding arrangements. If you did try and terminate the relationship early, you could face a claim for damages both for the loss of wages for the rest of the term, and for compensation for the loss of training and status.

The argument would be that the apprentice is less employable because they did not complete their training, so you could expect damages to be much higher than for unfair dismissal alone. You will also be expected to manage performance and absence problems in a manner which results in the apprentice achieving the required standards.

Generally, you can only terminate an apprenticeship if the conduct is such that it makes it impossible for you to carry out the central purpose of the relationship – teaching the apprentice the trade. This is a much higher threshold than is usual for performance issues.

Agreement

Apprenticeship is not only a relationship of employment but of learning and teaching. The law views it as learning foremost, with any work you get out of the apprentice as a secondary element.

As a minimum requirement, any written agreement should detail what skills the apprentice can expect to learn or the programme of training that will be set up. It should make clear what is expected of the apprentice, and what will need to be demonstrated to prove proficiency and pass the scheme. This might, for example, be obtaining externally assessed qualifications.

If some of the training will be provided by a third party you may want to set up a tripartite agreement spelling out what the apprentice can expect from them. At the very least you should ensure you outline any training requirements the third party is responsible for. And make sure that you don’t leave yourself exposed to claims of failing to provide the training adequately if this is out of your control. Unless otherwise stated you will be expected to help the apprentice to secure the relevant qualification to enable them to pursue a full-time career.

Signatures to this written agreement should be confirmed by independent witnesses to ensure that the signatories entered into the agreement freely and willingly.

Obligations

Your duties under discrimination law (and in the case of public authorities, wider equality duties) will apply to apprenticeships just as much as they do to other staff.

In particular, employers need to take care not to apply age limits to apprenticeship schemes, especially as the government has lifted former age restrictions on funding. Other eligibility criterion should be reviewed to ensure they are not indirectly age discriminatory, for example, requiring recent GCSEs.

You must also comply with the National Minimum Wage Act 1998. While there are provisions entitling you to pay lower rates to younger staff and a lower rate for those in “accredited training”, that will only last for six months.

Likewise, you will have obligations under the Working Time Regulations as regards rest breaks and paid holidays, and the usual health and safety obligations akin to those for all staff.

However, you should also make sure you entitle your apprentices to the same benefits as other staff, unless you can objectively justify a decision to treat them differently. Clearly if they are treated differently you could face discrimination claims, including under the legislation protecting fixed-term employees.

Anna Denton,
Partner at law firm Morgan Denton Jones

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Apprenticeships
Drafting a written agreement

You may also want to consider the following provisions in any written agreement:



  • The length of the fixed term the apprenticeship is to last for (there is no set period in the law)
  • If the apprentice is under 18, signature by their parent or guardian
  • A probationary period before the formal apprenticeship begins, to make it easier to remove any unsuitable candidates at the outset
  • The appointment of a mentor or person with special responsibility for apprentices, who will take care of their welfare
  • Details of how progress will be reviewed and monitored and at what intervals
  • The ability to terminate the relationship if the apprentice does not attain the necessary standards after a sufficient opportunity to do so
  • Requirement for those who leave at the end of the apprenticeship to pay back certain training fees if they do not stay with you for a stated period of time
  • Arrangements to transfer the apprentice in the case of redundancy, or at least to make reasonable efforts to find alternative work for them to enable them to complete their training.

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