Apprentices

Much has changed in apprenticeship regulation in recent years. The Apprenticeship, Skills, Children and Learning Act 2009 (ASCL 09) has created a new framework for apprenticeships. Key aspects of the framework include:

• a minimum duration: all apprenticeships must last a minimum of a year. For those aged 19 or over, apprenticeships must last between one and four years;

• all apprentices must be employees under an Apprenticeship Agreement. An apprentice cannot be self-employed, a worker or a volunteer;

• there are minimum working hours;

• there are minimum levels of guided learning hours for on and off-the-job training; and

• there are minimum requirements for skills training, including in English and Maths.

The ACSL 09 requires the whole of the apprenticeship to be delivered within the contracted hours under the employment contract. In other words, all training time for off-the-job learning must be paid. For information on minimum rates of pay for an apprentice, see Chapter 4: Rights to pay and terms.

The Apprenticeships (Form of Apprenticeship) Regulations 2012 (AFAR 12) require all new Apprenticeship Agreements to take the form of a written statement of particulars of employment or a written contract of employment, which must include a statement of the skill, trade or occupation for which the apprentice is being trained.

The new Apprenticeship Agreement is a “contract for service” (i.e. employment), not a “contract for apprenticeship”. Apprentices who sign an Apprenticeship Agreement have all the rights and responsibilities of ordinary employees, including as to unfair dismissal and redundancy.

In the past, it was very difficult for an employer to dismiss an apprentice for capability or misconduct. An apprentice who was dismissed prematurely could bring a substantial contract claim for damages for loss of training and status, as well as loss of earnings for the remaining term of the apprenticeship (Dunk v George Waller & Son Limited [1970] 2 QB 163).

The change to the law makes it easier for employers to impose performance management and capability procedures on apprentices under unfair dismissal law, just like any other employee, provided they have signed a valid Apprenticeship Agreement. However, it is likely that a tribunal would still expect a high level of employer involvement, training and opportunity to improve before accepting that dismissing an apprentice on capability grounds is fair. The redundancy rules that apply to apprentices in England under the new law are summarised on page 350. The rules in Scotland and Wales are different.

Just because an employer describes a contract as one of “apprenticeship” or refers to the employee as an apprentice, does not make the relationship one of apprenticeship (Chassis & Cab Specialists Ltd v Lee UKEAT/0268/10).

Apprentices have a right to at least minimum statutory employment terms, including statutory sick pay, statutory holiday pay and rest breaks under the Working Time Regulations. Apprentices have the right not to be unlawfully discriminated against (see Chapter 6: Discrimination).

There are specific grants and funding available to employers to take on apprentices.

More information can be found on the website: www.apprenticeships.org.uk