Apprenticeships – Getting the Law Right
We are all aware of the advantages that Apprenticeships provide to both the company and the apprentice. Our organisation has first hand experience of the benefits of employing an apprentice and it has proven to be an incredibly beneficial experience for all.
The law around apprentices is relatively straight forward, but it is essential that the organisation gets it correct from the outset or you may fall foul of the legislation if things do not work out with the apprentice. It could mean they have enhanced rights upon termination, so making it far more difficult to terminate the arrangement. If an apprentice is dismissed unfairly, they can be entitled to enhanced damages due to what is referred to as ‘loss of opportunity’.
There are two ways to engage an apprentice: a contract of apprenticeship or and apprenticeship agreement. In order for it to be an apprenticeship agreement (the most appropriate option) it must meet the following criteria:
The apprentice must undertake to work for the employer.
The agreement must state that it is governed by the law of England and Wales.
The agreement must be in the "prescribed form". This means that it must: contain the basic terms of employment required to be given to employees under section 1 of the ERA 1996; and include a statement of the skill, trade or occupation for which the apprentice is being trained under the relevant apprenticeship framework.
- The agreement must state that it is entered into in connection with a qualifying apprenticeship framework. An apprenticeship framework is a specification of requirement that will lead to an apprenticeship certificate. The requirements specified must be at a particular level and relate to a particular skill, trade or occupation.
Unfortunately, If the above criteria are not met then it is possible that the agreement will be viewed as a "traditional" contract of apprenticeship (which gives enhanced rights). Due to some recent changes in legislation, what we have now is the principle of ‘English apprenticeships’ – an agreement which:
Provides for an individual to work as an apprentice in a sector for which the Secretary of State has published an approved apprenticeship standard.
Provides 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.
Satisfies any other conditions specified by the Secretary of State in regulations.
The effect of the transitional provisions is that different statutory regimes apply to apprenticeships in England, depending on when they were entered into and whether an approved apprenticeship standard has been published:
Apprenticeships entered into before 26 May 2015 are covered by the previous regime for apprenticeship agreements.
Apprenticeships entered into on or after 26 May 2015, in sectors where there is no approved apprenticeship standard and the apprenticeship takes place under an apprenticeship framework, are also covered by the old statutory regime.
Apprenticeships entered into on or after 26 May 2015, in sectors where there is an approved apprenticeship standard, are covered by the new regime.
Therefore, when taking on an apprentice you need to establish whether there is an approved apprenticeship standard for the area in which they are being trained, and therefore what their enhanced rights may be. You may not always have known these options existed.
For more information call Solicitor Rory Wakeling on 01752 236717.