Is your Apprentice employment contract fit for purpose?
Is your Apprenticeship contract fit for purpose?
As employer interest in apprenticeships has risen, so have the issues with apprentice employment contracts, with many no longer being fit for purpose. This has caused significant problems for employers when they want to terminate an Apprentice’s employment due to poor conduct or performance.
Apprenticeship employment arrangements go way back in history and have become common law through custom and practice and case law. For most employers their Apprentice employment contracts fall into this category, which gives much greater protection for apprentices when it comes to early termination. Dismissal should only be contemplated under a common law contract where the conduct is so serious that the training and employment cannot reasonably continue, i.e. in gross misconduct situations. No other reason for early termination will be acceptable. This remains the situation in Scotland.
To achieve flexibility when employing Apprentices in England and Wales the contract of employment document needs to be clear that:
- The agreement relates to a qualifying framework or standard which is set by the Government
- It includes a statement of the skill, trade or occupation under which the apprenticeship is offered
- The agreement is governed by the law of England and Wales.
This is not however as simple as it sounds (as is usually the case!), because sitting alongside the above are Approved Apprenticeship Standards that apply in England. These new standards were introduced in May 2016 and in some sectors no Approved Standard has yet been set up. This means that the additional requirements (outlined above) to achieve a flexible apprentice contract still apply. To add an extra layer of confusion, the standards are undergoing a review with new ‘Trailblazer’ Apprenticeships set to replace the existing standards by 2020.
It is only recently that much of this additional legislation has come to light, which is why most existing apprenticeship contracts do not satisfy the criteria to achieve flexibility to dismiss where appropriate.
In addition bear in mind that where apprentices are also young workers (i.e. 16 to 18 year olds), restrictions on the hours they can work each week, along with greater rest-break requirements apply. Greater health and safety requirements also apply to young workers so many apprentices will fall into this category and employers will need to comply with those requirements too. Make sure too that your employers’ liability insurance includes young workers.
If you would like us to check out your Apprentice employment contracts for you – free of charge – and tell you whether they are compliant, give our friendly HR team a call on 0115 984 3119.