How to hire and fire an apprentice

Many employers have enjoyed the benefits of hiring apprentices, particularly since the Government introduced the Apprenticeship Levy in 2017.  Ensuring your apprentice is employed under the right documentation is essential to protect your business against possible claims in the Employment Tribunal. 

Unfortunately, the legislation regarding apprenticeships is particularly vague, as is the surrounding statutory instruments and guides.  There is also little case law in this area to be able to understand what the Government intended when drafting the legislation. However, we are able to answer some of the fundamental questions that are often asked of us when hiring or firing an apprentice.   

What type of apprenticeship am I offering?

A framework apprenticeship means that the apprenticeship is issued by the Federation for Industry, Sector, Skills and Standards, while a standard apprenticeship is issued by the Education and Skills Funding Agency.  If the apprenticeship is governed by a framework then the apprentice must be issued with an Apprenticeship Agreement and if it is a standard apprenticeship then the apprentice needs to be issued with an Approved English Apprenticeship Agreement (see point 2 below).

There are slightly different clauses that need to be inserted into the respective agreements which will be dependent on the version that the college/training provider is using.   We can advise you on the mandatory and optional clauses to ensure compliance.  If your documentation is not compliant, or the apprentice has not signed the apprenticeship agreement from the first day on which  the apprentice commences their apprenticeship with you, it is likely that you will have inadvertently created an old-fashioned Contract of Apprenticeship.

What documentation do I use when recruiting an apprentice?

There are three different variations with each one carrying different employment status rights and responsibilities. 

• Contract of Apprenticeship - an apprentice with a Contract of Apprenticeship has employee status, so they have the usual rights and benefits that a typical employee has, as well as enhanced rights which protect them against dismissal for the duration of their apprenticeship. The training part of the apprenticeship is the primary purpose and focus during their time as an apprentice whilst the work, duties and obligations to be carried out is secondary.
   
• Apprenticeship Agreement or an Approved English Apprenticeship Agreement – these are described as modern apprenticeships in accordance with Apprenticeship, Skills, Children and Learning Act (ASCLA) 2009.  An apprentice who has either of these types of apprenticeship has employee status and are very different to an apprentice who has a Contract of Apprenticeship in that;
  1. The work to be carried out is the primary factor.
  2. They must spend 20% of their time in education/training.
  3. These apprentices do not have the benefit of enhanced rights. 
  4. The apprenticeship must run for a minimum of 1 year.
  5. They must work at least 30 hours a week, which can include training.
  6. If their hours are reduced, the duration of the apprenticeship should be extended.
  7. There must be a commitment statement which sets out how the employer, provider and apprentice will have a successful achievement of apprenticeship.
  8. The apprentice must have compliant written terms and conditions of employment.

Under an Apprenticeship Agreement or an Approved English Apprenticeship Agreement, the employer, must provide the work and the apprentice must accept it, the apprentice must also adhere to the organisations rules, policies and procedures. 

Ideally, you need to use an Apprenticeship Agreement or an Approved English Apprenticeship Agreement for your apprentices so as to avoid them having those enhanced rights, which then makes it extremely difficult to dismiss them during their apprenticeship. 

How can I dismiss my apprentice?

If an apprentice has been issued with a compliant Apprenticeship Agreement or Approved English Apprenticeship Agreement (and have met other certain criteria) the usual rules apply. If they have less than two years service and provided there are no protected characteristics/special reasons then there is no obligation to follow a fair procedure and you can simply dismiss them with notice. If they have more than two years service, then the usual fair procedures shall apply.

If an apprentice has a Contract of Apprenticeship, there are very limited ways in which an apprentice can be dismissed; if they are wholly unteachable, by mutual consent, when their apprenticeship comes to an end or by reason of redundancy. 

Wholly unteachable – you could use this as a basis if you wish to dismiss your apprentice before the end of their apprenticeship. However, there is a very high threshold and so usual matters of gross misconduct which would warrant the dismissal of an employee do not apply. The apprentice’s actions have to be so extreme that the apprentice is effectively unteachable.

Mutual consent – The apprenticeship can be terminated by mutual consent, but the employer must make sure that they are not ‘strong arming’ the apprentice into leaving. You may want the comfort of a settlement agreement as, if this is agreed and signed, you will have the security of knowing that the apprentice is not going to be able to pursue a claim against you. The difficulty would be at the point that the apprentice seeks independent legal advice about the content of the settlement agreement, which they are obliged to do before signing for the settlement to be legally binding.  They could then be advised of their enhanced rights and could consequently request a higher compensatory figure, or they may decide not to enter into it at all.

Dismissal on completion of apprenticeship – once the apprenticeship is due to end you are on safe grounds to dismiss the apprentice if you do not wish to offer them a permanent position. Timing is crucial

Redundancy – the usual grounds for redundancy do not apply to an apprentice with a Contract of Apprenticeship.  In order for an apprentice to be dismissed fairly under reason of redundancy before their apprenticeship has come to an end, the organisation has to entail a complete closure or have undergone a fundamental change in its character.

Of course, the apprentice may choose to resign, which would bring the apprenticeship to an end.  Any resignation would need to be in writing, confirming the date in which they wish their employment to end, and it should be signed.

Hiring an apprentice can bring many rewards, however there does need to be an element of caution when recruiting.  The right documentation must be used in the initial stages to ensure you are able to take any necessary steps in the future to dismiss them if required.  Whilst there is limited case law, there has been one high profile case in which an employer was required to pay an apprentice £25,000 when they were made redundant, all because the apprentice was employed using the wrong documentation.

There are other considerations for employers, such as National Minimum Wage, repayment of training costs and Working Time Regulations that you must be aware of.  To understand the different varieties of documentation and your responsibilities to your apprentices as an employer, or for any other employment advice, contact Natalie Rawson in our Employment Team on 023 8071 7403 or email natalierawson@warnergoodman.co.uk.

This article has been published as part of the latest issue of our Commercial Brief, detailed within the In Brief section. To view the other articles within our Commercial Brief click here, alternatively view the other In Brief articles below:

• Putting back the pieces differently - The case for restructuring your organisation

• Defendant's failure to assign domain name results is finding of contempt of Court

• "Relational" contract benefits from implied duty of good faith

• The scope of lawful act duress clarified by Court of Appeal

• Intellectual Property: everything you need to know

• Bank's relationship manager had no authority to write off borrower debts

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.