Download Apprentices - FS34

Fact Sheet - FS34
APPRENTICES
This factsheet summarises the law relating to apprenticeships in England.
The fact sheet considers the main legal features of apprenticeships under the common law and
under the ASCLA 2009 and the implications for employers and apprentices of entering into them.
What is an apprenticeship?
The system of apprenticeships was first developed in the middle ages, when a master craftsman
could employ young people cheaply, in exchange for food, lodging and training. Apprenticeships
today are work-based training programmes, which lead to nationally recognised qualifications.
They enable employers to avoid skills shortages in traditionally skilled occupations. They also allow
apprentices to develop skills by combining working alongside experienced staff with day release
training.
Apprenticeships are open to all age groups above 16 and are available at intermediate, advanced
and higher degree level. An apprenticeship will be for a fixed term (usually between one to four
years) and/or until a level of qualification is reached. In general, apprentices work for at least 30
hours a week. However, the number of hours an apprentice works each week can be reduced if
the length of the apprenticeship programme is also extended. Apprentices are entitled to a
minimum hourly wage rate. The training element of the apprenticeship is usually fully or partially
government funded. The agreement will usually be in a form common to all apprentices in that
trade.
The National Apprenticeship Service supports, funds and co-ordinates the delivery of
apprenticeships and traineeships throughout England and provides a service for both employers
and apprentices.
There are currently four types of apprenticeship agreement:

Contracts of apprenticeship (also known as Traditional Apprenticeships, which is a contract
under common law in England and Wales. These are used in sectors to which the other
types of apprenticeship agreements do not apply (for example, for trainee solicitors and
accountants).

Apprenticeship agreements, which were introduced in 2011 and apply to Wales and, until
26 May 2015, applied to England. However, there are transitional provisions which mean
that, in addition to the agreements entered into in England before 26 May 2015, there will
still be apprenticeship agreements operational in England.

Approved English apprenticeship agreements, which apply to England after 26 May 2015 in
a sector where there is an approved apprenticeship standard.

Alternative English apprenticeship agreements, which apply to England after 26 May 2015
to arrangements of a kind described by regulations made by the Secretary of State.
1
V0417
1. Contract of Apprenticeship or Traditional apprenticeships
A traditional or common law contract of apprenticeship is a type of contract but one which involves
greater responsibility on the part of the employer compared to an ordinary contract of
employment.
A contract of apprenticeship involves an undertaking on the part of the employer to educate and
train the apprentice in the practical and other skills needed to practise a skilled trade or profession
and to maintain the apprentice until their training has been completed. In return, the apprentice
agrees to attend work, serve his or her employer and learn from them. The primary purpose of
the contract of apprenticeship is training and teaching, to enable the apprentice to secure the
required qualification. Work is only a secondary purpose of the contract. A contract of
apprenticeship must also be for a fixed term (either for a specified period of time or until the
apprentice reaches the required standard of qualification) and it must be in writing (it is often in
the form of a deed) and be signed by both parties. The written contract of apprenticeship should
ordinarily specify the rights and obligations of both the employer and the apprentice, what training
is to be provided and to what level, the length of the apprenticeship and the rates of pay.
A contract of apprenticeship falls within the statutory definition of ‘contract of employment’ set out
in the Employment Rights Act 1996. This means that apprentices are entitled to the full range of
employment rights currently applicable to employees. However, they also have additional rights
and protections by virtue of the nature of their particular contracts (see ‘additional employment
protection for apprentices employed under contracts of apprenticeship’ below).
Termination of a Traditional Apprenticeship
A contract of apprenticeship is entered into to enable the apprentice to receive training and obtain
qualifications in order to obtain better employment, and as such it cannot lawfully be terminated
before the expiry of the contract, except in exceptional circumstances.
If the employer terminates the agreement early, thereby depriving the apprentice of the training,
the apprentice is entitled to claim damages for wrongful dismissal under the contract for the
remainder of the fixed-term apprenticeship and also damages for future loss of earnings and
prospects as a qualified person. This is still the case even if the apprentice is a poor performer or
is having difficulty passing any necessary exams or if he or she has a conduct problem such as
poor timekeeping or a poor attendance record. Even a genuine redundancy situation, such as a
downturn in work, would not entitle the employer to dismiss the apprentice early, regardless of
length of service. The amount of damages awarded against an employer for terminating a
contract of apprenticeship early could therefore be substantial, which makes contracts of
apprenticeship a potentially significant burden for employers.
The employer can still discipline an apprentice for misconduct or poor performance but the
apprentice cannot be dismissed, except in exceptional circumstances.
Three examples of when a dismissal maybe permitted would be:



2
where the employer completely closes down his business or
the nature of the employer’s business changes to such an extent that the employer cannot
properly teach the apprentice the trade or profession that was intended to be taught. The
latter would include acts of serious gross misconduct and continual neglect of duties or
serious incapacitation on behalf of the apprentice to the extent that it has become
impossible for the employer to continue to teach the apprentice (subject always, of course,
to following a fair dismissal procedure);
where the agreement is terminated by mutual agreement. Where both parties
genuinely agree that the contract can come to an end this is an acceptable
termination, however, due to the financial risks associated with the termination of an
apprenticeship we would recommend asking the employee to sign a settlement agreement.
As a result of the inherent difficulties involved in terminating such an arrangement, as set out
above, we would recommend that apprentices are not issued with Traditional Apprenticeship
agreements but are instead engaged under an Apprenticeship Agreement: Approved English
Apprenticeship – Standard, or where this is not applicable, an Apprenticeship Agreement:
Apprenticeship Framework. Please see below for further information on the use of these
agreements.
2. Apprenticeship Agreements
The Government decided to try to simplify the statutory apprentice framework relating to
Apprenticeship agreements. The amendments, which apply from 26 May 2015, subject to
transitional provisions, are set out in new Chapter A1 of Part 1 of the ASCLA 2009
("Apprenticeships: England"). This introduces the concept of an approved English apprenticeship
which takes place under an approved English apprenticeship agreement or an alternative English
apprenticeship. One of the key features of the new regime is that apprenticeship frameworks will
be phased out and replaced by approved apprenticeship standards.
The amendments do not apply to apprenticeships in Wales.
Transitional arrangements
Transitional and saving arrangements have been put in place to deal with the existing approved
apprenticeships. Where someone has already entered into an apprenticeship agreement in
connection with an apprenticeship framework or enters into an apprenticeship in a sector in
relation to which there is not yet an approved apprenticeship standard, the old statutory regime
will continue to apply.
Work done by apprentices on "Trailblazer" apprenticeships (employer-designed apprenticeships)
will be recognised as part of an approved English apprenticeship and treated as approved English
apprenticeship standards.
Although an employer is not required to move an apprentice from a qualifying framework to an
approved standard in circumstances where there was no such approved apprenticeship standard in
existence at the time it was originally entered into, where an individual is initially engaged under a
qualifying framework and this agreement is extended and a new standard has been introduced in
the meantime, it will be necessary to enter into a new approved English apprenticeship agreement,
rather than continue to rely on the old framework.
The eventual aim is for the approved apprenticeship standards to replace the qualifying
apprenticeship frameworks in England, which will be phased out, but in the meantime these
transitional provisions will apply. The government's aim is to have all apprenticeship agreements
under the new regime by 2017/18 therefore it is appreciated that apprenticeships under the old
regime will continue for some time where there is not an apprenticeship standard applicable.
The “old” statutory regime
The Apprenticeships, Skills, Children and Learning Act 2009 stated that apprenticeship agreements
which are in the "prescribed form" are contracts of service and not contracts of apprenticeship.
Regulations which came into force in April 2012 have set out that the "prescribed form" of
agreement is:
3



A written statement of particulars of employment given to an employee for the purposes of
s.1 of the Employment Rights Act (ERA) 1996; or
A document in writing in the form of a contract of employment or letter of engagement
where the employer's duty under s.1 of the ERA 1996 is treated as met; and
The agreement must include a statement of the skill, trade or occupation for which the
apprentice is being trained under the apprenticeship framework.
Please see Apprenticeship Agreement.
There are three levels of apprenticeship agreement under this scheme (the previous age restriction
which stated that the schemes were only open to those aged 16-24 years of age no longer
applies):



Intermediate Level Apprenticeships (to NVQ Level 2 and, in most cases, a technical
certificate such as a BTEC) – these usually last about a year and allow entry to an
Advanced Apprenticeship.
Advanced Level Apprenticeships (to NVQ Level 3 and, in most cases, a technical certificate
such as a BTEC) – these usually last at least two years.
Higher Apprenticeships (to NVQ Level 4 and, in some cases, a qualification such as a
Foundation degree).
Employers offering any of these types of apprenticeship are advised to review the Government’s
Specification of Apprenticeship Standards for England, which sets out minimum requirements in
each level (including qualifications, skills and training). This document is available at:
https://www.gov.uk/government/publications/specification-of-apprenticeship-standards-forengland
There are over many different types of apprenticeship available in over 80 different sectors of
industry governed by frameworks which vary across the UK. In all cases there must be an
element of learning away from work. In England the apprentice has to undertake 280 "guided
learning hours" whereas in Wales the amount of learning hours is specified in the framework and
for Scotland and Northern Ireland there are no specified hours.
Approved English Apprenticeships
The Deregulation Act 2015 provides for approved English apprenticeships to replace
apprenticeships under the Apprenticeships, Skills, Children and Learning Act 2009 in England but
not in Wales. An approved English apprenticeship will take place under an "approved English
apprenticeship agreement" or will be an "alternative English apprenticeship" and, in each case,
must satisfy conditions to be specified in regulations to be published by the Secretary of State.
In order to be an approved English apprenticeship the agreement must:


provide for the apprentice to work in a sector for which the Secretary of State has
published an approved apprenticeship standard;
provide 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;
satisfy any other conditions specified by the Secretary of State in regulations.
The agreement will be treated as a contract of service.
Please see Apprenticeship Agreement: Approved English Apprenticeship – Standard.
The Skills Funding Agency (SFA) has published a list of all the apprenticeship standards approved
4
by
the
SFA
for
employers
and
training
organisations
to
https://www.gov.uk/government/publications/apprenticeship-standards-ready-for-delivery
use:
The Secretary of State will set the standards. They can also revise or withdraw standards therefore
it is important that every time an agreement is drafted the relevant standard is checked.
The standards will set criteria that the apprentice must meet to achieve a pass, merit or
distinction. An approved English apprenticeship will come to an end when the required standard
has been met. The Secretary of State may issue a completion certificate.
Approved apprenticeship standards
Approved apprenticeship standards replace apprenticeship frameworks in respect of English
apprenticeships from 26 May 2015, subject to transitional arrangements. The following provisions
apply:
 The Secretary of State must publish standards for particular sectors of work, which will
either be prepared by the Secretary of State or such other person approved by the
Secretary of State.
 Each standard describes the sector of work to which it relates, or if there is more than one
standard for that sector, the kind of work within that sector to which it relates.
 Standards must set out the outcomes that those seeking an approved English
apprenticeship are expected to achieve.
 The Secretary of State may publish a revised standard or withdraw a standard without
replacing it.
Rates of pay
There is a specific apprentice NMW which applies to workers who are 16 to 19 years of age and
workers who are aged 19 or over but in the first 12 months of their apprenticeship. The rate
applies to those workers who are employed either:


under a contract of apprenticeship; or
a government funded apprenticeship in England, Wales, Scotland or Northern Ireland.
If the individual is not engaged on an apprenticeship contract or participating in a government
funded apprenticeship they must receive at least the NMW for their age unless they fall into one of
the groups who are exempt from NMW. In order to pay the apprenticeship minimum wage
employers should check the Government Apprentice website to ensure that they are following a
frame work that entitles them to pay the apprenticeship national minimum wage.
See the National Minimum Wage fact sheet for further details, or go to:
http://www.direct.gov.uk/en/Employment/Employees/TheNationalMinimumWage/DG_10027201
Subject to NMW rates, the amount paid to apprentices is, as a general rule, up to the employer.
Employers can receive financial assistance towards the cost of the apprentice’s external training
from the National Apprenticeship Service (the percentage of funding available is dependent on the
apprentice’s age). This is usually paid direct to the external training provider.
Termination
Where the apprentice is employed under a "prescribed form" Apprenticeship
Agreement or Approved English Apprenticeship Agreement this is specifically stated not
to be a contract of apprenticeship and therefore it is possible to dismiss an apprentice
5
for poor performance, misconduct, redundancy etc in the normal way. However, the general
considerations when terminating a fixed term contract will still apply and employers should ensure
that the contract expressly states that an apprentice can be terminated for the usual reasons.
The expiry of the fixed term
If the reason for the contract of apprenticeship terminating is because the fixed term has come to
an end, then the claim for damages for wrongful dismissal as outlined above is not applicable
because there will have been no early termination. The apprentice could still have a claim for
unfair dismissal in these circumstances, so the employer will still need to show a potentially fair
reason for dismissal and also follow a fair dismissal procedure in the period prior to the expiry of
the fixed term. The fair reason for dismissal is likely to be ‘some other substantial reason’ (SOSR)
i.e. that an apprenticeship is a ‘once in a lifetime’ agreement and there is therefore no need for it
to be renewed once it has been successfully completed. The apprentice is not redundant at the
end of his or her apprenticeship and hence no statutory redundancy payment will be due.
Alternative English Apprenticeships
An alternative English apprenticeship is an arrangement under which a person works, which is of a
kind described in regulations made by the Secretary of State.
Arrangements which are classed as alternative English apprenticeships include cases where a
person:
 works otherwise than for another person;
 works otherwise than for reward.
The alternative arrangement exists where one of the following conditions has been met:

The apprenticeship was undertaken in a specified occupation where self-employment or
unpaid employment is the norm.

The apprentice who was working under an apprenticeship agreement was made redundant
during the apprenticeship and completed the course within six months from the date of the
dismissal, during which time they worked otherwise than for reward.

The apprentice was an elite athlete in a specified sport and trained with a view to
competing in the Olympics, Paralympics or Commonwealth Games.
For further guidance produced by the Skills and Funding agency
https://www.gov.uk/government/publications/apprenticeships-guide-for-employers
please
see:
The Future of Apprenticeships
The Government has announced plans to increase the number and quality of apprenticeships and
proposes to give businesses more of a say on the way in which they are operated. Significant steps
have already been taken to protect the 'apprentice' brand, by (amongst other things); making it a
criminal offence to offer an apprenticeship course or training if it is not a statutory apprenticeship
(although note that employers cannot commit the offence in relation to their employees).
In line with its focus on training and skills, the government has also introduced the concept of
traineeships; aimed at individuals who have not been successful in securing an apprenticeship or
other employment as a result of a lack of skills or experience. For further information on
traineeships, including government grants that may be available, please refer to the guidance
below:
https://www.gov.uk/government/publications/traineeships-referral-sheet-employers
6
Apprenticeship Levy
The Government has also introduced an apprenticeship levy to fund apprenticeship training. The
objective of the levy is to increase the quantity and quality of apprenticeships. From 6 April 2017
Employers are required to pay the monthly levy via PAYE if they have a pay bill of more than £3
million. The levy will be charged at a rate of 0.5% of an employer’s pay bill and each employer will
receive an allowance of £15,000 to offset against their levy payment. The levy will be collected
through PAYE RTI employer submissions.
Employers that do not pay the levy will also be able to access funding for apprenticeships.
This document has been created by, or on behalf of ESP Ltd, as a general document and as a
guide in relation to its subject matter and has not been bespoke drafted for you or the specific
circumstances in which you are looking to use it. Prior to using this document and undertaking
any HR process you must consult your organisation’s own policies and procedures to ensure that
you do not do anything in conflict with your own policies and procedures. If in any doubt as to
how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd
on 0333 006 2929 and our legal team will be more than happy to assist. ESP Ltd will not be
liable in any way for any actions undertaken by you or your use of this document unless we have
been consulted regarding your use of this document as legal advisor to your business or have
bespoke drafted any documentation in response to a specific support request.
7