How not to come unstuck with apprentices…
The main piece of advice that we can offer is to ensure that there is a written apprenticeship agreement from the outset.
All apprentices are employees and so benefit from the same rights as your “typical” workforce.
However, some will enjoy enhanced protection from dismissal if they have a contract of apprenticeship under the common law rather than a statutory apprenticeship under the Apprenticeships, Skills, Children and Learning Act 2009.
The reason the agreement is crucial is that without one, employers can find they have inadvertently created a common law apprenticeship and given the individual greater rights.
With limited exceptions, common law apprentices can only be dismissed if it is no longer possible for the apprentice to be trained.
Common law apprentices are also entitled to enhanced damages on early termination of the apprenticeship (i.e. for the remainder of the fixed term).
In comparison, apprentices engaged under the statutory regime have the same rights as ordinary employees.
Another area to be mindful of is what happens when the apprenticeship has finished and there is no further role available.
As an apprenticeship agreement is a fixed term training agreement, it can come to an end at the end of its term.
Nevertheless, this still counts as a dismissal in law and care should be taken where the apprentice has over two years’ service to ensure that there is a legitimate reason and fair process followed for any termination.
In relation to pay, one area that can often catch employers out is when the apprenticeship rate of pay can be paid.
For apprentices who are under 19 or over 19 but in the first year of their training, they can be paid at the lower apprentice rate.
Following this, the national minimum or living wage rates applicable to age must be paid.
Terms of employment and benefits are also important and employers should offer apprentices the same terms of employment as other employees of similar status or with the same length of service to avoid claims of age discrimination.
Our advice is to contact Solutions for HR when you are taking on an apprentice so we can ensure the agreement is drafted to provide the best possible protection