This week is National Apprenticeship Week – an initiative that will run from 5-11th February, to celebrate the value, benefit and opportunity that apprenticeships bring to both organisations and the individuals themselves.
In the current employment landscape, where recruitment and retention continue to pose challenges for organisations, apprenticeships may be attractive solution for many organisations, providing a pipeline of skilled talent and contributing to a culture that values continuous learning and development.
However, there are essential considerations employers and HR professionals should bear in mind when employing apprentices, both from a practical and legal perspective. In this blog, we’ll explore these considerations to help organisations ensure a smooth and beneficial apprenticeship experience for both parties.
What is an Apprenticeship?
An apprenticeship is a paid job which combines employment and training. Apprenticeships are work-based training programmes which lead to nationally recognised qualifications. They enable employers to avoid skills shortages in traditionally skilled occupations and allow apprentices to develop skills by combining work (alongside experienced staff) with training.
Apprenticeships are available to anyone over the age of 16 who is not in full time education and is entitled to work in the UK.
An apprentice will:
- Work alongside experienced staff
- Gain job-specific skills
- Earn a wage and get holiday pay
Be given time for study related to their role (the equivalent of one day per week)
Types of Apprenticeship
There are different types of apprenticeship arrangements depending upon when, where and how they are entered into.
Perhaps the most important thing to understand from an employment law aspect when considering employing an apprentice is to make sure that the individual is engaged on the correct type of contract. Using the wrong contract is the main pitfall for employers to be wary of as it can make dismissing an apprentice, even for gross misconduct, high risk.
If your business operates within a sector for which the government has published an approved apprenticeship standard (which is most sectors) then engaging apprentices on an ‘approved English apprenticeship agreement’ which is governed by the rules under ASCLA 2009 (Apprenticeships, Skills, Children and Learning Act 2009) is likely to be the more desirable option.
The Institute for Apprenticeships & Technical Education provides a list of approved apprenticeship standards. Each standard sets out the role, occupation, level of the qualification, typical duration of the apprenticeship and maximum funding available and other relevant information.
If a dispute arises over the nature of a particular apprenticeship the courts will determine which form of apprenticeship agreement is in place. If a contract does not comply with the provisions of the ASCLA and fails to include all of the relevant provisions required, it may be determined that a common law contract of apprenticeship has been entered into which would confer additional employment rights on the apprentice that the employer may not be intending.
Contracts of Apprenticeship
These are the oldest form of apprenticeships but are still used in certain professional sectors, such as with trainee accountants and solicitors, where the newer statutory framework does not apply. Apprentices under Contracts of Apprenticeship are employees, but the primary purpose of this contract is to train the apprentice rather than to provide work for the employer.
Apprentices under a contract of apprenticeship have the same employment rights and protections as any other employee in the organisation, including entitlement to statutory employment rights, such as minimum wage (albeit at the apprenticeship rate as applicable), holidays, and protection against unfair dismissal.
In addition to standard employment rights, apprentices engaged under a contract of apprenticeship have enhanced employment rights and protections. Dismissing an apprentice under a contract of apprenticeship, other than in extremely limited circumstances, risks amounting to a breach of contract where the employer could be liable for loss of earnings for the remainder of what would have been the contract plus an award for loss of opportunity given the apprentice will not at the end of this period have the qualification they were working towards and hence have more limited employment opportunities and lower earning potential.
Approved English Apprenticeship Standards
A person completes an Approved English Apprenticeship if they achieve the “approved apprenticeship standard”. Each standard will describe the sector of work to which it relates and the outcomes that those seeking an approved English apprenticeship are expected to achieve. The conditions which need to be satisfied are set by the Secretary of State.
In order to be an Approved English Apprenticeship the agreement must:
- Provide for the apprentice to work in a sector for which the Secretary of State has published an approved apprenticeship standard;
- Provide for the apprentice to receive training in order to assist the apprentice to achieve the approved apprenticeship standard in the work done under the agreement; and
- Satisfy any other conditions specified by the Secretary of State in regulations.
An approved English apprenticeship agreement is to be treated as a contract of service and is specifically not a contract of apprenticeship.
There are certain conditions which need to be included in an Approved English Apprenticeship and if you fail to include the relevant conditions then you could be seen to have entered into a Traditional Apprenticeship and therefore will have difficulty in terms of termination should you need to consider this at any point during the term of the agreement.
We would strongly urge all employers to take advice to ensure they have the correct documentation in place before any apprenticeship is entered into to avoid potential pitfalls in the future and so that they understand what their obligations are going to be.
