What is the legal status of your apprentice and what employment rights do they have? Don’t get caught out with the wrong contract.
It’s great to see more businesses employing apprentices. It can be an affordable way of bringing in new staff in return for providing a learning opportunity for young (and not so young) people.
However, some employers are confused as to the employment status of apprentices and I’m often asked what type of contract they should have.
Many training providers who ‘supply’ apprentices will say that the apprentice should be employed on the same terms and conditions as other employees and, in the main, this is correct. However, the contract under which the apprentice is employed should be given careful consideration as there are potential legal implications.
Legal status of apprentices
Traditionally, apprenticeships were a two-party arrangement between a master craftsman and an apprentice. This was usually for a fixed period under a contract of apprenticeship, the primary purpose being training and not work.
These arrangements still exist and they give apprentices enhanced protection against dismissal. For example, such apprentices cannot be made redundant unless the business actually closes or its fundamental nature changes. It can also be extremely difficult to dismiss for misconduct with one case going so far as to say that the apprentice must be “virtually unteachable”. Along with enhanced claims for damages and compensation for wrongful dismissal – this isn’t an attractive option for employers.
The statutory apprentice
In 1994 the Government introduced what it called “modern apprenticeships”, later rebranded as “apprenticeships” in 2004. These were often supported by government funding and generally involved an external third-party training provider.
While different from the traditional apprenticeships, this could still amount to a contract of apprenticeship, bringing with it an apprentice’s enhanced protection from dismissal. Still not a good ‘sell’ to employers.
Today’s apprenticeship agreement is different
The current statutory system was introduced under the Apprenticeship, Skills, Children and Learning Act 2009 (ASCLA) and came into effect from April 2012, when regulations were introduced setting out the prescribed form of the agreement.
What this means is that apprentices employed under this type of apprenticeship agreement are treated as ‘normal’ employees with normal (not enhanced) employment rights.
Far more attractive to employers … so what’s the catch?
To be an apprenticeship agreement, certain conditions must be fulfilled otherwise the arrangement may be viewed as a contract of apprenticeship with its enhanced protections.
Therefore, our advice is to ensure that you amend your standard contract to include clauses specific to the required conditions, namely:
- the apprentice will undertake to work for the employer under the agreement
- the written basic particulars of employment required by s.1 of the Employment Rights Act 1996
- a statement of the skill, trade or occupation for which the apprentice is training under the relevant apprenticeship framework
- that it is governed by the law of England and Wales
- that it is entered into in connection with a qualifying apprenticeship framework.
We can help you with your apprenticeship agreement and ensure you avoid any legal loopholes.
Don’t just insert ‘apprentice’ into your standard contract or you may find that it gives the individual the legal status of a traditional apprentice.
The up-side of employing apprentices
Some of my clients have recruited apprentices and they’ve turned out to be fantastic employees. They work hard, are keen to learn and have become important members of their team.
Start as you mean to go on
In one or two cases there have been teething troubles and, as most apprentices tend to be younger people without previous work experience, it’s worth just thinking through a few important points in readiness for them joining you.
Some of the things we take for granted at work can be unfamiliar (and a bit scary) for new employees. It’s important to go through your usual induction process, including health and safety, office routines, equal opportunities, etc. but do take time to ensure that the apprentice really understands what is expected of them and how to do their job.
At the Opticians
One young apprentice working in a busy reception area was completely at a loss when it came to answering calls and greeting visitors. She had little experience of actually talking on the phone – even in her social life. With extra coaching and support she is now a star receptionist and enjoys dealing with customers both on the phone and in person.
and the Mortgage Broker
Another struggled at first with the concept of arriving at work on time, suitably dressed and ready to get started with the day’s work. He just didn’t have any idea of what was expected and gentle suggestions didn’t work. Eventually, his manager had to deal formally with his lateness – there is now a marked improvement and the apprentice is settling into the routine and culture of the company like a duck to water.
Of course, good induction shouldn’t just be confined to youngsters (or apprentices) – it’s important for all new employees. Remember that the “on-boarding” conversations you have with your people really do make all the difference.
Contact Dianne on 01243 544805 for advice on apprenticeship agreements and “on-boarding”. We will protect you and keep you legal.
Take a look at Chichester College’s helpful guide for employers