Back to top

Apprentices

This factsheet considers the employment law implications of employing apprentices in England. It does not cover the practical aspects of apprenticeships in detail, such as how to enter into an apprenticeship, or funding for example. For further information on these aspects of apprenticeships, including the huge range of occupations and sectors covered, the National Apprenticeship Service (NAS) is an online service that allows employers to choose and pay for the apprenticeship training, and co-ordinates the delivery of apprenticeships and training throughout England, please see:

https://www.gov.uk/topic/further-education-skills/apprenticeships

What is an apprenticeship?

An apprenticeship is a paid job which combines employment and training; they 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 day release training. Apprenticeships have been in place since the middle ages, but there has been a real policy focus in recent times from various governments to promote the use of apprenticeships in order to boost the economy and upskill the workforce.

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.

Traditionally, apprenticeships have provided structured routes into skilled work for young people entering the labour market.

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)

Apprenticeships are a good way for employers to nurture their own talent and also provide individuals with the opportunity to enter the labour market whilst training on the job.

Levels of Apprenticeship

Once an apprentice has completed their apprenticeship they will be awarded a nationally recognised qualification.

Apprenticeships are available at intermediate, advanced, higher and degree level and are normally for a fixed duration (usually between one and four years) or until the qualification is reached.

Working hours

Generally apprentices will work for at least 30 hours per week. This may be reduced if the length of an apprenticeship is extended.

Minimum Wage

The national minimum wage for apprentices aged under 19 or aged 19 and over and who are in the first year of their apprenticeship is lower than the national minimum wage applicable for "standard" employees, and so there can be a cost saving to businesses in employing apprentices.

For up to date information on the current applicable national minimum wage (including apprentices) please see:

Statutory rates and limits table.

Training

Training will be a combination of on the job learning and off site learning. The level and detail of training will vary depending on the sector in which the apprentice is working as well as the skill level of the apprentice.

Apprenticeships will vary however they should all comprise three core elements:

  1. Transferable skills – a core set of skills that can be applied in any workplace. These skills include English, maths and ICT.
  2. Competence – these will generally be completed in the workplace and over the technical aspects/skills required to carry out the job in the sector the apprentice is working in
  3. Knowledge – covers the technical knowledge and theory that is relevant to the practical skills an apprenticeship will develop in their job role.

Types of apprenticeship agreement

Perhaps 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; 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 you should seek to engage apprentices on an 'approved English apprenticeship agreement' which is governed by the rules under ASCLA 2009 (Apprenticeships, Skills, Children and Learning Act 2009).

To check the list of sectors for which approved standards have been produced, or to see an example of the standards and required learning outcomes you should visit:

Institute for Apprenticeship's website.  

It is much easier to dismiss an apprentice employed under an approved English apprenticeship agreement. 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.

The problem with traditional apprenticeships (contracts of apprenticeship)

Traditional Apprenticeships are a contract under common law in England and Wales. The primary purpose of the contract of apprenticeship is training and teaching, to enable the apprentice to secure the required qualification. Work is only a secondary purpose of the contract.

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 in order to obtain better employment.

If the employer does terminate the contract early, and as a result deprives the apprentice of training the apprentice is entitled to claim damages for wrongful dismissal under the contract for the remainder of the fixed-term apprenticeship and also 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 time keeping 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, except in exceptional circumstances, as follows:

  1. Where the employer completely closes down his business
  2. The nature of the 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. The latter 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)
  3. 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. It would be recommended to ask the employee to sign a settlement agreement document this agreement.

Due to the complications in relation to termination of a traditional apprenticeship agreement it is generally recommended that apprentices are not issued with Traditional Apprenticeship agreements but are instead engaged under an Apprenticeship Agreement: Approved English Apprenticeship – Standard, or where this is not applicable, an Apprenticeship Agreement: Apprenticeship Framework.

Apprenticeship Agreement: Frameworks

Apprenticeship agreements were introduced in 2011 and until 26 May 2015 applied to England when they were replaced by the concept of an approved English apprenticeship  which takes place under an approved English apprenticeship agreement  or an alternative English apprenticeship. One of the key features of the new regime is that apprenticeship frameworks  will be phased out and replaced by approved apprenticeship standards.  

Although there is an active attempt by the Government to move away from the Apprenticeship Agreement there are still apprentices engaged under this type of contract. If someone enters into an apprenticeship in a sector in relation to which there is not yet an approved apprenticeship standard the "old regime" will still apply and they will be engaged under an Apprenticeship Agreement.

Although an employer is not required to move an apprentice from a qualifying framework to an approved standard in circumstances where there was no such approved apprenticeship standard in existence at the time it was originally entered into, where an individual is initially engaged under a qualifying framework and this agreement is extended and a new standard has been introduced in the meantime, it will be necessary to enter into a new approved English apprenticeship agreement, rather than continue to rely on the old framework.

Approved English Apprenticeship Agreements

Approved English Apprenticeship Agreements apply to England from 26 May 2015. 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.

These agreements should be used for any apprentice entering into an industry where there is an approved apprenticeship standard.

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;
  • 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. For a compliant Approved Apprenticeship Agreement please see:

Approved English Apprenticeship- Standard

Termination of Approved English Apprenticeship Agreements

Where the apprentice is employed under a "prescribed form" Apprenticeship Agreement (Framework) or Approved English Apprenticeship Agreement (Standard) this is specifically stated not to be a contract of apprenticeship and therefore it is possible to dismiss an apprentice for poor performance, misconduct, redundancy etc in the normal way. However, the general considerations when terminating a fixed term contract will still apply and employers should ensure that the contract expressly states that an apprentice can be terminated for the usual reasons. 

Employers should also be aware of any specific requirements in relation to the apprenticeship funding rules which may apply from time to time, which may include obligations in relation to attempting to assist any apprentices whose roles are terminated as a result of redundancy in securing new positions elsewhere. For further information please see:

https://www.gov.uk/guidance/apprenticeship-funding-rules

An Approved English Apprenticeship Agreement may also be terminated at the end of a fixed term. In this case there would be no claim for damages for wrongful dismissal. The apprentice could however still claim for unfair dismissal so the employer will need to be able to show a potentially fair reason for dismissal. 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.

Alternative English Apprenticeship Agreements

An alternative English apprenticeship is an arrangement under which a person works, which is of a kind described in regulations made by the Secretary of State.

Arrangements which are classed as alternative English apprenticeships include cases where a person:

  • works otherwise than for another person;
  • works otherwise than for reward.

The alternative arrangement exists where one of the following conditions has been met:

  • The apprenticeship was undertaken in a specified occupation where self-employment or unpaid employment is the norm.
  • The apprentice who was working under an apprenticeship agreement was made redundant during the apprenticeship and completed the course within six months from the date of the dismissal, during which time they worked otherwise than for reward.
  • The apprentice was an elite athlete in a specified sport and trained with a view to competing in the Olympics, Paralympics or Commonwealth Games.

For further guidance produced by the Skills and Funding agency please see: https://www.gov.uk/government/publications/apprenticeships-guide-for-employers

Apprenticeship Funding Rules

There are different funding rules for different apprenticeship start dates. Employers should be careful to ensure they follow the funding rules that apply to each apprentice.

The current rules can be found:

https://www.gov.uk/guidance/apprenticeship-funding-rules

Apprenticeship funding and levy

In 2017, the government changed the way in that apprenticeship funding works by introducing:

  • The apprenticeship levy
  • A new co-investment rate to support employers who don’t pay the levy
  • The National Apprenticeship Service

From April 2017, a new apprenticeship levy applies to all UK employers who have an annual wage bill of £3million or more (regardless of whether they offer apprenticeships themselves).

In England, employers can access and manage their funds through an online apprenticeship service run by the Skills Funding Agency. The funds can only be used towards the cost of apprenticeship training and end-point assessments.

For Apprenticeships that have started since April 2019, Employers who do not need to pay the Levy will pay 5% towards the cost of training and assessing the apprentice.

Impact of Covid-19

The Government have published information for apprentices who are currently affected by Covid-19.

In summary, this is designed to support apprentices to continue and complete their apprenticeships wherever possible. They are encouraged to make use of digital facilities and distance-learning.

Further information can be found here:  

https://commonslibrary.parliament.uk/research-briefings/sn03052/

 

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.

Get the latest HR and employment law news, advice, insight, free resources and promotions straight to your inbox