An apprentice is protected against unfair dismissal and enjoys employment protection in the normal way. However, contracts of apprenticeship involve other obligations for employers comparing ordinary contracts of employment as the whole purpose of such an arrangement is to provide training to the individual over a defined period.
Usually apprenticeship contracts are for a fixed term of several years and cannot be terminated early. Therefore, if an employer terminates the contract early, any damages payable for breach of contract are potentially much greater than damages for breach of an ordinary employment contract or even unfair dismissal. In addition, the apprentice could be entitled to be compensated not just for loss of wages to the end of the contract but also for loss of the training opportunity.
In recent years so-called “modern apprenticeships” provided a method for young people between 16 and 24 who are not in full time education to acquire (NVQs). The government is considering raising the age limit so that people over 25 can use the scheme to learn skilled trades.
A new National Apprenticeship Service (NAS) was officially launched in April 2009, with the aim of bringing about “a significant growth in the number of employers offering Apprenticeships”.
An official review of the apprenticeship programme started in 2007. The review led to the passing on 13th November 2009 of the important Apprenticeships, Skills, Children and Learning Act 2009.
Apprentices were originally excluded from the national minimum wage (NMW) but, in October 2010 an apprentice rate was introduced for apprentices under 19 or in the first year of their employment. Once an apprentice is aged 19 or over and has completed a year of their apprenticeship, they are then entitled to the NMW rate for their age.
The Apprenticeship, Skills, Children and Learning Act 2009 (the “Act) provides that an agreement will be an “apprenticeship agreement” if:
• the apprentice undertakes to work for the employer under the agreement • the agreement is in the prescribed form
• the agreement states that it is governed by the laws of England and Wales
• the agreement states that it is entered into in connection with a qualifying apprenticeship framework Section 35 of the Act provides that an apprenticeship agreement which satisfies these conditions should be regarded as a contract of service not a contract of apprenticeship for common law or statutory purposes.
Finally after years of waiting we have from 6 April 2012 a “prescribed form” of the apprenticeship agreement.
While it had been expected that the regulations would include an example document in fact, the regulations simply say that that apprenticeship agreements entered into under the Act must contain the basic terms of employment required to be given to employees under section 1 of the Employment Rights Act 1996. This could be in the form of a written statement of particulars of employment, a written contract of employment or a letter of engagement.
In addition, the regulations state that the prescribed form of agreement must contain a statement of the skill, trade or occupation for which the apprentice is being trained under the apprenticeship framework.
Where section 35 of the Act applies, so that an apprentice is deemed to be working under a contract of service, it appears that they will be entitled to the more generous age related rate of the NMW rather than the apprentice rate. The prescribed form of agreement is not mandatory and it maybe that employers decide not to use it given the potential for increased costs as a result. However, this has to be balanced against the potential advantages of being able to terminate a contract of service more easily.
From August 2012 all apprenticeships will be for a minimum of 12 months.
Also there is a useful TUC webpage on “Your rights as an apprentice“.