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 (subject to them being employed for at least 2 years) 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.
Types of apprenticeship
There are two different types of apprenticeship: contracts of apprenticeship and apprenticeship agreements.
Contracts of apprenticeship are generally for a fixed term and cannot be terminated early except for in cases of extreme misconduct. They can be created orally and even without the use of terminology such as ‘apprentice’ or ‘apprenticeship’. The defining feature is that training is the main purpose of the arrangement.
Apprenticeship agreements must comply with an ‘apprenticeship framework’ published by the Government and incorporate a training element, generally through an external training provider. Government funding is available to cover part of the cost of this training and, unlike contracts of apprenticeship, an apprentice can be dismissed in the same way as any other employee. There are certain conditions which must be met for an arrangement to constitute an apprenticeship agreement:
The apprentice must be required to work for the employer
It must contain certain basic information regarding the terms of employment i.e. start date (and end date if for a fixed term), rate of pay and hours of work
- Be in writing
- State that it is governed by the Law of England and Wales
- State the skill, trade or occupation for which the apprentice is being trained; and
- State that it is entered into in connection with a qualifying apprenticeship framework
Whilst these conditions may not appear particularly onerous, they are significant in light of the fact that non-compliance could result in a contract of apprenticeship and therefore mean that the employer would not be eligible for government funding.
A good rule of thumb is that, if an arrangement does not meet the requirements of ASCLA, it will be a contract of apprenticeship.
Under what circumstances can an apprentice be dismissed?
Generally speaking, an employer has no legal obligation to provide the apprentice with a job once their contract has ended. The exception to this is when a job is promised within the apprentice agreement. If their contract is not renewed at the end of the apprenticeship, the apprentice will be considered to have been dismissed, usually for ‘some other substantial reason’. Nevertheless, there will be a dismissal for the purposes of the Employment Rights Act 1996 and therefore the potential for an unfair dismissal claim exists.
The nature of an apprentice’s contract also makes it very difficult for an employer to dismiss them during the course of their apprenticeship. The onus is, of course, on the employer to show that they are dismissing the apprentice fairly and reasonably. An employer cannot simply give an apprentice notice that they are going to be dismissed if, for example, you cannot afford to keep them on.
Otherwise, those under a contract of apprenticeship can only be dismissed in the most serious of conduct cases. 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.
For those apprentices employed under an apprenticeship agreement, they can be dismissed in the same way as any other employee.
How much should an apprentice be paid?
Under the current 2016/17 rates, an apprentice should be paid a minimum of £3.50 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.
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.
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.
If you currently employ, or are considering employing, an apprentice and are unsure of your legal obligations to them or require assistance in drawing up the correct legal documentation, please do not hesitate to contact our specialists on 0203 816 9302, who will be happy to discuss how we can assist you moving forward. Alternatively please complete our online enquiry form and we will contact you directly.