Quite a common question we get asked is: ‘we have an apprentice who is underperforming, can we dismiss them with minimal risk?’
The answer to that question hugely depends on the type of apprenticeship they are on, which may be guided by the contract you have issued them.
What types of apprenticeship are there?
There are two types of apprenticeship contract. The first is a ‘Contract of Apprenticeship’ and the second is an ‘Apprenticeship Agreement’.
A Contract of Apprenticeship is a ‘common law’ agreement, whereas an Apprenticeship Agreement is in line with specific legislation – the Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA 2009).
Whichever type of agreement they are on, the apprentice will be an employee. However, it is harder for an employer to dismiss an apprentice employed under a Contract of Apprenticeship than it is to dismiss an apprentice employed under an Apprenticeship Agreement.
What is the difference?
Under a Contract of Apprenticeship, the apprentice has additional rights and protections which mean they can only be dismissed before the end of their apprenticeship term in very limited circumstances (including ‘extreme misconduct’ or certain specific redundancy situations). If they are dismissed otherwise, they’ll have the right to claim for loss of earnings up until their apprenticeship end date. This can obviously be pretty expensive.
Under an Apprenticeship Agreement, the apprentice will just have the same employment law rights as an employee, i.e. the right to bring an unfair dismissal claim after 2 years of service and the right to bring claims of discrimination or automatic unfair dismissal from day one.
What does an employer need to do?
Most apprentices should be on an Apprenticeship Agreement, but as the employer it’s key to ensure that the contract you issue them with meets the requirements under ASCLA 2009. There is certain information that needs to be included for it to be a valid Apprenticeship Agreement, which goes over and above what is required in a normal contract of employment. If this is not included, there is the risk of the apprentice being found to be on a Contract of Apprenticeship and therefore being in the position to bring a claim for loss of earnings should they be dismissed.
Employers should ensure that they issue the correct contract from the outset, to avoid a difficult situation later down the line where they want to terminate the agreement but don’t have the correct paperwork in place. There will of course be other points to consider, such as whether there is any potential for an unfair dismissal or discrimination claim, but having a proper Apprenticeship Agreement in place is a good starting point.
The final point to consider is that apprentices, by nature, are there to learn and will likely require more support than you would generally give an employee. Of course, there are certain standards you might expect them to reach, but there will need to be some management time invested into a successful apprenticeship. If you are able to do so, then there can be great benefits on both sides.
If you have any queries on this or require any support managing such issues please contact the advisory team on 01274 864 999.
