Is my Apprentice actually an Apprentice?

The Helens

The Helens

We’ve become aware of some confusion around the employment of apprentices, so we’ve put together the following summary that we hope will clear a few things up.

There are 2 types of apprentice arrangements:

Contract of Apprenticeship (Common Law Contract)

A Contract of Apprenticeship does not need to contain specific provisions or be in a particular form. It is governed by common law and affords an apprentice greater rights than that of an employee.

These include not being terminated for redundancy and it is exceedingly difficult for you to terminate for any other reason. If a Contract of Apprenticeship is terminated, the apprentice can claim to be paid for the entire duration of the fixed term, and for the loss of employment opportunity if they have not been able to complete their qualification.

Should you wish to terminate for gross misconduct, case law suggests the misconduct must be so serious that it is impossible to carry on teaching the apprentice and that gross misconduct (which would justify the summary dismissal of an ordinary employee) may not be sufficient to justify early termination.

Apprenticeship Agreement (ASCLA 2009)

The Apprenticeships, Skills, Children and Learning Act 2009 (the ASCLA 2009) came into force on 6 April 2011.

Apprenticeship Agreements under ASCLA 2009 provide apprentices with employee status including most of the statutory rights available to employees. For example, apprentices are entitled to 5.6 weeks’ paid holiday per year and have the same rights as employees under the Working Time Regulations (including average working hours per week and regular rest breaks).

Apprenticeship Agreements (ASCLA 2009) are covered by the Equality Act 2010. The protections from discrimination and harassment on the grounds of the nine protected characteristics covered by that Act, including sex, race, disability, religion or belief, gender, sexual orientation and age, therefore apply to apprentices. Apprentices also have the right not to be unfairly dismissed.

For employers, Apprenticeship Agreements allow for more flexibility in terms of taking action for poor performance and conduct and terminating if the relationship becomes untenable or unsatisfactory.

An apprenticeship agreement under the ASCLA 2009 is specific to apprenticeships. An employment contract used for standard employees will not suffice.

The Apprenticeships (Form of Apprenticeship Agreement) Regulations 2012, which came into force on 6 April 2012, prescribe the form that must be used to enter into an apprenticeship agreement under the ASCLA 2009. We can provide you with a template, if you’d like one.

If you would like further information regarding an Apprenticeship Agreement, please get in touch helen.manson@complexhr.co.uk

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