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These FAQs set out the common questions and pitfalls faced by employers when dealing with apprentices. The additional documents referred to are designed to assist you further. Please note that some documents are available to all readers whilst others are locked and only accessible to HR Protect clients. To become a retainer client or to find out further information please click here.
Anyone over the age of 16 who is not in full time education, whether they are a current employee or new to the business, can become an apprentice.
Employers who employ those under the age of 18 must assess the risk to such individuals from a health and safety point of view before they start employment, taking into account their inexperience, lack of awareness of risks and immaturity.
The first and perhaps most important thing to understand when considering employing an apprentice is to make sure that the individual is engaged on the correct type of contract. Using the wrong contract is the main pitfall for employers to be wary of; it can make dismissing an apprentice, even for gross misconduct, high risk.
Most sectors now have approved apprenticeship standards that the apprentice will work towards. To check the list of sectors for which approved standards have been produced, or to see an example of the standards and required learning outcomes you should visit the Institute for Apprenticeship’s website: https://www.instituteforapprenticeships.org/apprenticeship-standards
Where a standard does not exist for a particular role then there may be an apprenticeship framework in place. The government are in the process of replacing these therefore standards should be used where possible.
Apprenticeship agreements in England have to be in a prescribed form and satisfy certain conditions. If you engage an apprentice but do not do so in the prescribed form or if an approved standard does not exist for your sector then the apprentice will be engaged under a ‘contract of apprenticeship’, meaning that they are a traditional apprentice. Such individuals can only be safely dismissed where it has become impossible to train them.
For a compliant contract using an approved apprenticeship standard see:
A2: Contract of employment: apprenticeship agreement (English approved standard)
Or where a framework is still in place and no approved English apprenticeship standard has been produced see:
A3: Contract of employment: apprenticeship agreement (framework)
A2 – Apprenticeship Agreement (English Apprenticeship Standard)
What type of contract should an apprentice be given?
The employer’s responsibility to ensure the delivery of the training element of the apprenticeship is the main difference between employers’ responsibilities towards apprentices and other employees.
Apprentices must spend at least 20% of their time on off-the-job training. When you take on an apprentice you should select a training provider from the register of apprenticeship training providers and agree a price for the cost of training and assessment. On completion of the apprenticeship the apprentice must pass an assessment to demonstrate that they can perform the relevant role to the standard set by the relevant apprenticeship standard or framework.
You can select and compare training providers and view apprenticeship standards/frameworks on the apprenticeship service on gov.uk: https://www.gov.uk/guidance/manage-apprenticeship-funds
Aside from ensuring the delivery of appropriate training, employers also need to have:
An employer with a pay bill of over £3 million a year you must pay the apprenticeship levy regardless of whether they employ an apprentice.
The levy is currently 0.5 per cent of a company’s pay bill. It is deducted through the PAYE each month and paid into a fund which is reinvested in apprenticeship training. For every £1 contributed by employers the government adds 10p. If you are a levy paying employer you can manage and access levy funds and your apprenticeship program by using the online apprenticeship service:
You can take the same approach to performance management, misconduct, dismissal, etc. with an apprentice as you would any other employee provided they are engaged on the correct contractual documentation. Similarly, apprentices are entitled to holiday pay, sick pay and maternity/paternity/adoption/shared parental leave subject to the usual qualifications.
However, if an apprentice is working under a contract of apprenticeship then dismissing them before their fixed term contract ends is high risk. See can I dismiss an apprentice during their apprenticeship below.
If the apprentice is employed under an apprenticeship agreement you can terminate their employment by following the same procedures as you would with any other employee in the business.
If the company will not be employing the apprentice after the completion of their apprenticeship this is likely to constitute a dismissal (regardless of the fact that their fixed term has expired). You should therefore treat the expiry of their fixed term like any other dismissal, i.e. be able to show that one of the five potentially fair reason for dismissal apply, most likely SOSR, and be able to demonstrate that you followed a fair procedure in relation to the dismissal. Failure to do so may give grounds for an unfair dismissal claim. Although apprentices who have worked for the company for less than 2 years would only be able to bring a claim in limited circumstances.
If the apprentice is employed under a contract of apprenticeship then dismissing them before the end of their apprenticeship is high risk unless it can be shown that they are essentially unteachable. An apprentice whose apprenticeship ends early could be entitled to claim sums in respect of loss of earnings, loss of training and loss of future career prospects. Please speak to your legal advisor for further advice in these circumstances.
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