Law On Apprentices Nov 26, 2013Views: 1666
This article outlines the law relating to apprentices.
A contract of apprenticeship is different from a contract of employment and is subject to special rules. 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 the 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.
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 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.
Apprentices who are 16 or over but under 19 years of age and apprentices who are aged 19 or over but in the first 12 months of their apprenticeship are entitled to an apprentice National Minimum Wage (NMW) of £2.68 per hour (this is the rate applicable for the current year 2013). Apprentices who are aged 19 or over and who have completed the first year of their apprenticeship must be paid at least the NMW. 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.
As a contract of apprenticeship is for a fixed term to enable the apprentice to receive training and obtain qualifications in order to obtain better employment, it cannot lawfully be terminated before the expiry of that fixed term, 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 employer can still discipline an apprentice for misconduct or poor performance but the apprentice cannot be dismissed, except in exceptional circumstances. A contract of apprenticeship can probably only be brought to an end either by some frustrating event or by a repudiatory act on the part of the apprentice.
When the fixed term comes to an end the contract of apprenticeship terminates, however the apprentice can bring a claim for unfair dismissal if he or she has sufficient continuity of employment. Therefore it is paramount for the employer to show a fair reason for dismissal and also follow a fair dismissal procedure in the period prior to the expiry of the fixed term. The employer will need to be able to demonstrate that there were no other suitable alternative vacancies available for the apprentice once the apprenticeship had been completed.
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