It is possible to dismiss an apprentice, however, the practicalities of employing and dismissing apprentices depends largely on the type of apprenticeship agreement in use. Using the wrong contract is the main pitfall for employers to be wary of; it can make dismissing an apprentice, even for gross misconduct, high risk.
There are two types of apprenticeship agreement:
- Approved English Apprenticeship Agreement
- Common Law Contracts of Apprenticeship
There are many reasons why an employer may seek to end an apprenticeship agreement early,
including a downturn in work, poor attitude to work, or attendance issues. It is much easier to dismiss an apprentice employed under an approved English apprenticeship agreement as they are treated far more as a standard employee would be in terms of their employment law rights.
If a dispute arises over the nature of a particular apprenticeship, the courts will determine which
form of apprenticeship agreement is in place. ASCLA sets out various criteria that the contract
must meet to be classified as an approved English apprenticeship agreement. If a contract does not comply with the provisions of ASCLA and fails to include all the relevant provisions required, it may be determined that a common law contract of apprenticeship has been entered into.
A traditional apprenticeship cannot be lawfully terminated before the expiry of the fixed term contract, except in exceptional circumstances. This is because the contract is entered into to enable the apprentice to receive training and obtain qualifications as a means to obtain better employment. This gives the apprentice far greater employment rights than an ordinary employee.
If an employer terminates a contract of apprenticeship early, and as a result deprives the apprentice of training, the apprentice is entitled to claim damages for wrongful dismissal under the contract. The remedy for such a claim would include their loss of earnings for the remainder of the fixed-term apprenticeship in addition to damages for future loss of earnings and prospects as a qualified person.
This applies even if the individual is a poor performer or is having difficulty passing any of the exams. The apprentice would be able to make a claim regardless of whether there are conduct issues such as timekeeping and attendance. Even a genuine redundancy situation, such as a downturn in work, would not entitle an employer to terminate a traditional apprenticeship agreement (regardless of the length of service).
Employers can still discipline a traditional apprentice, but it will only be safe to dismiss them under exceptional circumstances, in certain situations. These include where an employer completely closes down the business; where the nature of an employer’s business changes to such an extent that the employer cannot properly teach the apprentice the trade or profession that was intended to be taught.
Exceptional circumstances would include acts of serious gross misconduct and continual neglect of duties or serious incapacitation on behalf of the apprentice to the extent that it has become impossible for the employer to continue to teach the apprentice (subject always to following a fair dismissal procedure), and where the agreement is terminated by mutual agreement. Where both parties genuinely agree that the contract can come to an end, this is an acceptable termination.
Terminating Employment at the Expiry of the Apprenticeship
The expiry of any fixed-term employment contract constitutes a dismissal and, as such, employers need to have both a fair reason and follow a fair procedure in doing so if they are to minimise the risk of resultant claims.
In many instances, this will be “some other substantial reason”, and the employer will be able to say that the apprenticeship was a one-off agreement and there is no need for it to be renewed once it has been completed and a qualification obtained.
At the end of the fixed term, the apprentice will not be deemed redundant if they do not get a new contract and, therefore, they are not entitled to redundancy pay.
