However, employers should be aware that taking on an apprentice can involve taking on very onerous obligations. It is a common misconception that an apprentice can be dismissed fairly and lawfully in the same circumstances as a normal employee and it is important that, where an employer employs an apprentice, they understand the obligations and limitations that this entails.
What is an apprenticeship?
The concept of apprenticeship is not new, but it has evolved over the years. A modern apprenticeship commonly combines working within the apprentice's chosen trade whilst also studying, usually through attendance at college courses, for a formal recognised qualification. Modern apprenticeships are usually tripartite agreements between the employer, the apprentices and a third party training provider. The apprenticeship usually runs for a set period of time, although the length of the apprenticeship will vary depending upon the nature of the qualification sought.
Whilst the concept of apprenticeship is most commonly associated with trades work, the definition can extend into other areas of work. For example there has been discussion over the years in terms of whether professional trainees (for example trainee solicitors) amount to apprentices on the basis that they are receiving on the job training whilst also meeting certain external requirements to meet the qualifying standards of the profession.
Since 2011, in England & Wales, in addition to a common law apprenticeship, it has been possible to enter into an "apprenticeship agreement" which is governed by the provisions of the Apprenticeship, Skills, Children and Learning Act (ASCLA) 2009. There are certain specific requirements for an apprenticeship agreement under the 2009 Act to be valid:
1 - The apprentice must do work for the employer;
2 - The agreement must contain the basic terms of employment and a statement of the skill, trade or profession which the apprentice is being trained to carry out;
3 - The agreement must state that it is governed by the law of England and Wales; and
4 - The agreement must state that it is being entered into in connection with a qualifying apprenticeship framework.
The consequence of working under an apprenticeship agreement under ASCLA rather than as a common law apprentice under a contract of apprenticeship is that the ASCLA apprenticeship agreement does not have the enhanced rights of an apprentice in relation to termination as set out below.
What rights do apprentices have?
Rights on termination
The concept underpinning a modern apprenticeship is that training is the primary purpose of a contract of apprenticeship, and working for the employer should be treated as secondary. The consequence of this is that employees under a contract of apprenticeship enjoy enhanced rights in relation to termination.
A contract of apprenticeship is for a fixed-term, usually for the duration of the training course which will result in their qualification, and employers are extremely limited in terms of dismissing the apprentice before the end of the fixed-term, even where there is poor performance or misconduct.
In the same way as any other employee, an apprentice will have the right to claim unfair dismissal if they are dismissed unlawfully. However, given that the right to claim ordinary unfair dismissal only applies to employees who have a minimum of two years' service, this doesn't offer much protection to many apprentices.
However, unlike ordinary employees, apprentices can also claim that the fact of termination of their employment is a breach of contract by their employer (and there is no qualifying service requirement for a breach of contract claim). Ordinary employees can, of course, claim that they have been dismissed in breach of contract if their employment is not terminated in accordance with the terms of their contract of employment (for example if they are not served with their contractual notice), but their damages will be limited to what they would have earned during their notice period which will, in most cases, be somewhere between 1 and 12 weeks.
In contrast, if an apprentice is dismissed prior to the end of the fixed-term and successfully claims that this is a breach of contract then they may be entitled to both damages for loss of earnings until what would have been the end of the apprenticeship, and also future loss of earnings beyond the duration of the apprenticeship for loss of future career prospects. This is on the basis that it will be difficult for an apprentice to find another workplace to join mid way through their training course and their dismissal will often therefore effectively end their chances of being able to pursue their chosen career.
This type of claim can succeed even if their dismissal would have been fair under ordinary unfair dismissal principles. For example where it may be fair to dismiss an ordinary employee if they have committed a series of acts of misconduct or if their performance is poor, the level of misconduct or poor performance will need to be much higher in the case of an apprentice before dismissal can be safely considered. There is a lack of recent case law in terms of the circumstances in which an apprentice can be dismissed in a way that doesn't breach their contract, but it appears to be limited to circumstances in which their actions are so extreme as to render them unteachable - i.e. where their conduct goes to the heart of the contract, which is to train them to do the role in question. In addition, apprentices cannot be dismissed on grounds of redundancy unless the business closes or the business changes fundamentally. In most cases apprentices should therefore not be factored into a redundancy exercise.
In contrast, an apprenticeship agreement under the 2009 Act is deemed to be a contract of service and can therefore be terminated in the same way as an ordinary contract of employment.
There is currently a specific national minimum wage rate for apprentices, which is lower than the ordinary rate for other employees of the same age in the first year of the apprenticeship. However the Government has recently proposed to increase the minimum wage rate for apprentices in their first year so that it equals the rate for 16-17 year olds, which would equate to an increase of just over £1 per hour.
Recruiting an apprentice
In many trades and professions it is necessary and desirable to have apprentices working for the business in order to undertake the more basic roles, and in order to nurture future talent to the benefit of the business. However, any employer who takes on an apprentice should consider the consequences carefully and ensure that they are committed to retaining the individual, even if they add little value to the business, for the duration of their apprenticeship. In many ways the recruitment of an apprentice should therefore be more closely scrutinised than in the case of an ordinary employee given the difficulty involved in dismissing them should they prove unsuitable.