Engaging an apprentice
Danny Done, Managing director of Portfolio Payroll, provides guidance on the rights and responsibilities during apprenticeships
I am considering hiring an apprentice for the first time. What are my responsibilities as an employer to the apprentice and to what rights is the apprentice entitled?
A
pprenticeships are a form of on-the-job training that can be mutually beneficial for both the employer and apprentice alike. Apprentices benefit greatly by earning a wage and working alongside experienced staff in order to gain job specific skills and qualifications, whilst on the other hand businesses can be benefited by the opportunity to nurture fresh new talent, as well as getting enthusiastic and energetic employees at a fraction of the cost than someone with a few more years’ worth of experience. Apprenticeships can be tailored to your business’s needs, providing you with workers with the specific skills you need for the future. Not only this, but apprentices tend to be motivated, and flexible workers with a point to prove, who are loyal to the company that invests in them. In the Employment Rights Act 1996, apprenticeships are included within the definition of a contract of employment: “In this Act ‘contract of employment’ means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.” Therefore, whether the worker has a contract of service (an ‘employee’) or a contract of apprenticeship (an ‘apprentice’), both are equally considered to have a contract of employment, so this means that the rights given to any apprentice should not be fewer or weaker than those that are given to a regular employee.
Despite both employees and apprentices equally having contracts of employment, there is however a clear distinction between employees and apprentices with regard to
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the purpose of their employment. While it is expected that both apprentices and employees will be given some form of training during their employment and both will provide work for their employer, there is a much greater focus on the training side of employment for the apprentice. In essence, the primary purpose of apprenticeships is realistically the training that they receive, with a secondary focus on the work provided to the employer. It is definitely worth bearing in mind that taking on an apprentice will be a greater commitment than hiring a regular new employee; you will have further responsibility for your apprentice than you have for your employees in that you will have a duty to train your apprentice in specific skills. While the burden on you will be greater, the rights given to an apprentice, in comparison to an employee, are arguably
...AN APPRENTICE WILL BE A GREATER COMMITMENT THAN HIRING A REGULAR NEW EMPLOYEE
greater, too. It follows that the level of work that can be expected of an apprentice who is learning to be capable in their field should be lower than that of a qualified employee. It would thus be unlikely for an apprentice to be fairly dismissed on grounds of capability before the end of their apprenticeship.
An apprentice may have additional rights in relation to their contractual arrangements where their apprenticeship is deemed to be a fixed-term contract. A fixed-term apprenticeship cannot be
terminated with minimum notice as an ordinary employment arrangement might be; apprentices are engaged until the point where the fixed period of apprenticeship ends. However, it is permissible to terminate an apprenticeship before the end of the fixed term period on the grounds of gross misconduct or conduct that amounts to making the relationship between yourself and your apprenticeship unworkable. This would be a defence against wrongful and unfair dismissal; however, a fair disciplinary procedure with warnings should always be followed. Past Employment Tribunal cases have shown that an apprentice cannot be made redundant and if they are, they will have a claim for wrongful dismissal and potentially enhanced damages by reason of a loss of prospects as a tradesperson – so you need to be aware of this prior to commencing any apprenticeship.
Many employers find that applicants for apprenticeship jobs are usually younger people because these posts are normally lower paid. However, apprenticeship schemes should always be open to all age groups. It is not advisable to set a restriction on the age of the apprentice you wish to employ, e.g. advertising for an apprentice aged sixteen to nineteen. This may be direct age discrimination under the Equality Act 2010, unless you can objectively justify the restriction – but cost alone is not likely to be an objective justification. You would have to demonstrate with evidence that restricting the age range of applicants is a proportionate means of achieving a legitimate aim, e.g. to address high levels of youth unemployment in your community. However, courts will need to be satisfied this is proportionate and that you had no other reasonable way of achieving the same outcome to meet the needs of the business.
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