Contracts for Apprentices - don't get caught out by archaic law

An apprenticeship provides on the job training, with accompanying study, in a particular trade or profession. Apprenticeships date back to the 12th century, and formed an important part of the development of skills and trade in the UK’s industrial history. 

Because there is such a long history of apprenticeships, which pre date any legislation governing them, there are some unusual quirks which could catch out the unsuspecting employer.

Most significantly, if you don’t have the correct type of contract in place, it can be almost impossible to terminate the employment of an apprentice until their apprenticeship comes to an end. This is regardless of whether they have attained the coveted minimum 2 years’ service to be protected from unfair dismissal.

Common law apprentices

If you use your usual employment contract to engage an apprentice, they may be viewed the same as apprentices from centuries ago: working under a common law contract of apprenticeship. This means that the primary focus of their engagement is their training – not the work they carry out for the employer, which is secondary. 

Consequently, common law apprentices attract enhanced protection from dismissal from day one, and in most cases you will not be able to terminate their employment before the end of the apprenticeship. If you do, you could be liable for paying damages to compensate the apprentice for loss of salary for the entire length of the apprenticeship.

In particular, common law apprentices:

• Are not held to the same standards of conduct as other employees. Misconduct that might justify dismissal in usual cases, is unlikely to for a common law apprentice. It is only if their actions are so extreme that they are unteachable, that you might be able to validly terminate the contract.
• Cannot be dismissed for reason of redundancy because of a downturn in work, for example. It is only in extreme cases, for example if the business closes entirely or substantially changes, that a common law apprentice can be made redundant.
• Have certain statutory rights that can only be extinguished by way of a settlement agreement (should both apprentice and employer agree to terminate the arrangement)
• Are protected from unfair dismissal in the same way as fixed term employees who have at least 2 years’ service. Once the apprenticeship comes to an end, the employer will need a fair reason, and will need to follow a fair process, if they have no job for the individual and want to terminate their employment

Apprenticeship Agreements

To avoid the constraints of the common law contract of apprenticeship, apprentices should be engaged under an Apprenticeship Agreement. This Agreement needs to contain certain provisions in order to comply with the Apprenticeship, Skills, Children and Learning Act 2009. Your standard employment contract won’t cut it.

Often the educational institution will provide an agreement of sorts, however this will not necessarily cover all of the aspects you need to include from an employment law point of view. We would always recommend that you seek professional support in putting in place a compliant Apprenticeship Agreement in order to provide the best possible protection for your business.

Apprentices in Scotland and Wales

There are differences to how apprenticeships work outside of England, particularly in Scotland. You should always take advice if you’re looking to engage apprentices in a different jurisdiction, don’t rely on your existing documents as they may not be suitable.