Apprentices

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)

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 apprenticeship agreement in place with the apprentice for the duration of the apprenticeship (which must be at least one year). As set out above it is crucially important to use the correct documentation;
• a commitment statement signed by the apprentice, the employer and the provider;
• a written agreement with the training provider; and
• the apprentice on the correct wage for the time they are in work, in off-the-job training and doing further study.

• Employers are not required to pay National Insurance Contributions for apprentices under the age of 25 on earnings below the higher tax rate of £827 a week (£43,000 a year).
• Apprentices that are employed under an apprenticeship agreement and are in the first year of their apprenticeship or under 19 years old can be paid national minimum wage at the apprenticeship rate (see current rate https://www.gov.uk/national-minimum-wage-rates).
• £1,000 payment to both the employer and the training provider when they train a 16 to 18 year old.
• £1,000 payment to both the employer and the training provider when they train a 19 to 24 year old who has previously been in care or who has a local authority education, health and care plan.
• Employers with a pay bill of less than £3 million a year will not need to pay the apprenticeship levy but at least 90% of the apprenticeship training and assessment costs will be paid for by the government.
• Employers with a pay bill of more than £3 million a year will be required to pay the apprenticeship levy regardless of whether they employ apprentices so may as well access the funds that are available/they contribute to in order to cover apprenticeship training and assessment costs.

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:

https://www.gov.uk/guidance/manage-apprenticeship-funds

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.

For further information see: