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Employment rights of apprentices

employment rights of apprentices

What is an apprenticeship?

There are two legal forms of apprenticeship:

1 A Common Law Apprenticeship – a traditional contract of apprenticeship which is governed by the common law.

2 A Statutory Apprenticeship – an apprenticeship agreement, an approved English apprenticeship or an alternative English apprenticeship entered into and governed by the Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA 2009).

The most common form of apprenticeship is the Statutory Apprenticeship. This is because compared to a contract of apprenticeship (which comes with onerous rules and obligations), an apprentice under a Statutory Apprenticeship is subject to similar rules on management and termination as a regular employee.

An apprentice is a young person who is gaining a profession or qualification on the job.

– Apprentices can be anyone over the age of 16 and not in full time education.

– Apprenticeships can be for school leavers or those who are seeking to start a new career. [see Apprentices and Trade Unions, The Apprenticeship Levy]

 


Employment Rights of Apprentices

As an apprentice, you are an employee within the definition in the Employment Rights Act 1996. Section 230(2) says; 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.

This means that you are an employee like everyone else and entitled to the same employment rights and privileges. You have the right to claim unfair dismissal, and are protected from discrimination. Your employer has more responsibility for you, than regular employees and has to put a higher focus on your training and work that trains you for your future role or qualification.

You are entitled to;

– A written contract of employment.

– Statutory maternity, paternity, adoption, shared parental pay and sick pay

– A full induction in the workplace.

– A negotiated training plan or contract between yourself, the employer and the training provider.

– Pay

– A safe working environment and protection from discrimination or bullying.

– Release from work to attend formal training.

– Provision of an appropriate range of work experiences to enable you to complete your qualifications.

– Access to support, guidance and mentoring.

– Quality training.

– Regular assessments and review of progress.

– Sufficient time away from work-station or desk to study in work time.

– A chance to learn while you earn – to get real work experience.

– An opportunity to get nationally recognised qualifications.

– Access to progression routes to higher education.

– The possibility of long-term employment with promotion prospects.

– A chance to learn from experienced workers in the sector.


Can an Apprentice be fired?

An apprentice is also an employee whether under a traditional contract of apprenticeship or a Statutory Apprenticeship Agreement. Both are contracts of employment under section 230(2) ERA 1996 and therefore an apprentice who enters into such a contract will be an employee under ERA 1996, s 230(1). An Employer must go through all the correct procedures in the workplace policy and the ACAS Code 1, or a dismissal would be unfair or wrongful.

 

Contract of apprenticeship

You have stronger rights with a traditional contract of apprenticeship. A traditional contract is one where the apprentice is bound to the employer in order to learn a trade, and the employer agrees to teach and instruct them. A contract of apprenticeship can only be brought to an end by some fundamental frustrating event or repudiatory act.  Such apprenticeships are special, and a misconduct that would usually justify dismissal of an employee is not sufficient. The only way in which a contract of apprenticeship can be terminated is if you do something that makes you unteachable, therefore frustrating the purpose of the contract. You cannot be dismissed for redundancy, and if your employer dismisses you before the end of your contract, you can sue for breach of contract and get damages for the full term of the contract as well as loss of your future career prospects.

Redundancy

This means that the ordinary law on dismissal does not apply. An apprentice can only be terminated on grounds of redundancy on rare occasions – ‘closure or a fundamental change in the character of the employer’s enterprise. The contract is for a fixed term and is not terminable at will, unlike a contract of employment at common law –  Wallace v CA Roofing Services [1996]

Misconduct

A contract of apprenticeship may not be terminable for misconduct in the same way as an ordinary contract of employment and, in the event of wrongful termination, the apprentice may have a claim for enhanced damages by reason of the loss of their prospects as a tradesman on completion of their apprenticeship – Dunk V George Waller & Son Ltd [1970]

Agreements 
Apprenticeship agreements prevail over the terms and conditions of a contract – Whiteley v Marton Electrical Ltd [2003]. 

 

Apprenticeship Agreement (Approved English Apprenticeship Agreement)

Section 3 of the Deregulation Act 2015 inserted a new Chapter A1 into Part 1 of the ASCLA 2009 (set out in Schedule 1 to the Deregulation Act 2015), which introduced the concept of ‘approved English apprenticeships’ with effect from 26 May 2015.

The effect of this is that the apprenticeship agreement operates through the medium of ordinary employment law, rather than under the traditional contract of apprenticeship, and issues regarding status and termination of employment should be addressed under the terms of statute, rather than by reference to the old law of apprenticeship.

The ordinary law as to dismissal therefore applies to an individual employed under an apprenticeship agreement, while it does not apply to an individual employed under a contract of apprenticeship.

The apprenticeship agreement will be a limited-term contract so if employment is not renewed at the end of the term that will operate as a dismissal in law – North East Coast Shiprepairers v Secretary of State for Employment [1978]

Normal unfair dismissal principles will apply and the dismissal will be subject to the test of reasonableness.


How much should an Apprentice be paid?

The apprentice minimum wage only applies to those aged 16-18, or those aged 19 or over who are in their first year. If you are 19 or over, and have been an apprentice for more than 12 months, you will be entitled to either the development rate or the adult rate of national minimum wage depending on your age.


The Working Time Regulations 

The protections in the Working Time Regulations for young workers under 18 also apply to you as an apprentices. Young workers must not work more than 8 hours a day, or 40 hours a week.You are entitled to paid holidays and rest breaks of at least half an hour if your shift  is more than four and half hours.


Updated: 15/09/2020

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