You’re (not) fired! Apprentices have greater protection than employees – for now

With so many people currently unemployed, the Government are very keen to encourage businesses to take on apprentices. However, many employers are unaware that apprentices currently have significantly greater protection than employees, and it does not require a qualifying period. This is because apprenticeships are considered different from employment contracts in law – their primary purpose is one of training, not of employment.

Apprenticeships are usually for a fixed term (usually either a set period of time or until the apprentice fulfils a particular qualification). That fixed term cannot usually be terminated early, and if it is terminated by the employer, then the apprentice may be entitled to compensation for loss of wages, loss of training and loss of status. The compensation for these claims could potentially be greater than for unfair dismissal (and as stated above, there is no qualifying period). However, the apprentice could claim the best of both worlds – they may have employment rights as well as their protection as an apprentice.

The difference in status also means that businesses should not just use their normal contract of employment for apprentices. Often an apprenticeship will actually be a three way agreement between the apprentice, the employer and the training provider. Depending on the training provider, they may have certain clauses (e.g. an “individual learner plan”) which need to be included in order for the arrangement to qualify for funding. For example, the training provider will expect the business to pay for the training, and will expect the apprentice to attend on time for the allotted sessions and to work to the best of their ability.

One attraction of an apprenticeship for many businesses is that for the first year of the apprenticeship (and/or if the apprentice is under 19) you can pay the National Minimum Wage (NMW) at apprenticeship rates – currently £2.60 per hour. However, this is another reason why the documentation for an apprenticeship needs to be carefully considered – if you give your apprentice your standard contract of employment (for example), then you may be undermining your argument that they are an apprentice for NMW purposes.

The law on apprenticeships is changing, and the Apprentices, Skills, Children and Learning Act 2009 contains provisions regarding a new apprenticeship structure. When the Act first received Royal Assent it was due to come into force in 2013. However, the Department for Business, Innovation and Skills have recently confirmed that from April 2012 they ‘anticipate’ that new regulations will be in force, containing in particular a specified form of apprenticeship agreement. We will provide further information on this as soon as it is available.

Do you have issues with an apprentice? Have you documented your apprenticeships properly? For advice on this or any other aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected])