Training apprentices is a great way for employers to mould and develop their staff to cater for immediate business needs and shape the future of the business. Also, apprentices can help to reduce staff turnover as they have a tendency to be motivated and loyal to the employer that has provided them with the opportunity. Employers can also receive government funding for apprenticeship programs, which will obviously reduce costs. However, as much as an asset apprentices can be to businesses, employers should be wary of unintentionally granting an apprentice ‘common law’ status.
‘Common Law’ apprentices
For centuries, all the legal principles that dealt with apprenticeships were contained in case law (also known as common law). Apprentices who fall under the common law are beneficiaries of the legal principle that the essential purpose is training, with the production of work for their employer being secondary. Therefore as the primary purpose is training, such apprentices have heightened protection when it comes to dismissal (and indirectly, sanctions) compared to non-apprentice employees. This heightened protection applies in cases of misconduct, performance management and redundancy (common law apprentices are totally protected when it comes to redundancy).
The consequences of an illegitimate early termination include the employer paying out the former apprentice for loss of earnings for the remainder of their apprenticeship term. An employer may also be required to compensate the former apprentice for the diminution of their future prospects.
‘Statutory’ apprentices
In 2008, the government wanted more apprentices, and removed the enhanced rights given to ‘common law’ apprentices so that apprentices could be dismissed like ordinary employees. It was at this time the concept of a statutory ‘apprenticeship agreement’ was born.
For employers to avoid granting an apprentice ‘common law’ status, they must ensure apprentices are given a statutory apprenticeship agreement. There are different types of apprenticeship agreement depending on whether the apprentice is doing a course that is an ‘approved standard’ or a ‘framework’. If the wrong type of apprenticeship agreement is given to an apprentice, the apprentice will be granted ‘common law’ status by default.
Therefore employers must carefully check the correct agreement is given to an incoming apprentice in order to prevent the apprentice getting the enhanced rights granted by them being of ‘common law’ status.
By Zahid Reza
Image used under CC courtesy of InstituteForApprenticeships