Apprenticeships – A Legal Overview

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Apprenticeships – A Legal Overview

Key Contact: Claire Knowles

Author: Adam McGlynn

Apprenticeships can be a useful tool in a business’ strategy. By offering work-based training programmes, employers can benefit from a more reliable intake while apprentices can develop their skills in real-world situations alongside experienced professionals. A traditional apprenticeship will usually last for at least 12 months and combine practical experience with off-the-job training, leading towards a qualification in the apprentice’s field. But not all apprenticeships look the same and it is important to understand the legal framework when establishing a new apprenticeship.

Common Law vs Statutory Apprenticeships

How an apprenticeship is set up will determine whether it is governed by common law or by statute, which will affect the rights of the apprentice and the obligations on the employer.

Common law apprenticeships, implemented by ‘contracts of apprenticeship’, are the older form of apprenticeship but are still used in certain professional sectors, such as with trainee solicitors and accountants, where the newer statutory framework does not apply. Apprentices under contracts of apprenticeship are employees, however, this contract can be distinguished from regular employment contracts as its primary purpose is to train the apprentice, the performance of work being secondary. For this reason, apprentices employed under a contract of apprenticeship have enhanced rights on termination compared to regular employees, making it more difficult to dismiss for misconduct, poor performance, and redundancy. If dismissed without taking these higher thresholds into consideration, the damages can also be greater than usual as they may include loss of training and future earnings.

Apprenticeship Agreements were later introduced in England and Wales by the Apprenticeships, Skills, Children and Learning Act 2009, providing a new, statutory framework for apprenticeships. Employers often prefer ‘apprenticeship agreements’ as they avoid the enhanced rights of common law ‘contracts of apprenticeship’, provided the apprenticeship agreement is in a prescribed form and satisfies certain conditions. Where the form and conditions are not satisfied the agreement may be considered a common law contract of apprenticeship, as these contracts are not subject to such formalities.

Apprenticeship Agreements are still used across Wales, however, ‘Approved English Apprenticeship Agreements’ were introduced in England under the Deregulation Act 2015. It is highly recommended that employers looking to introduce apprenticeships in their business seek legal advice to ensure the correct legal framework is used and the correct formalities are complied with.

Other Legal Considerations

In addition to compliance with the relevant legal framework, apprentices are also employees and so employers will have to be mindful of their usual obligations. With this in mind, we have provided a list of common risk areas associated with apprenticeships where bespoke advice may be recommended:

  • Age Discrimination – Applying age limits or offering employment terms that are less favourable than those in similar roles could create risk of age discrimination.
  • National Minimum Wage – The ‘apprenticeship rate’ applies to apprentices in their first year or under 19 years old, after which the usual rate of NMW will apply according to age.
  • Working Time – young persons, i.e. those under 18 years but above compulsory school age, are entitled to enhanced protections relating to rest breaks, working hours, and night work.
  • Health and Safety – Special health and safety rules apply to young persons whereby employers will need to consider inexperience, awareness, and maturity in their assessments.

For advice on apprenticeship schemes in your business, contact our Employment Department.

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