Know your apprenticeship rights

What rights do apprentices have and how should HR professionals deal with the issue?

Apprenticeships are becoming increasingly popular, meaning the question of the rights enjoyed by apprentices is relevant to more and more employers. The position is slightly different depending on where the apprentice is employed.

It is important to be clear about the type of apprenticeship agreement you have. All apprentices are employees and so benefit from the same rights that come with that status. However, some will enjoy enhanced protection from dismissal if they have a contract of apprenticeship under the common law rather than a statutory apprenticeship under the Apprenticeships, Skills, Children and Learning Act 2009.

The detail is complex and employers should take advice before taking on apprentices, as the 2009 Act sets out certain criteria that must be satisfied. If they are not, employers may find they have inadvertently created a common law apprenticeship and given the individual greater rights.

With limited exceptions, common law apprentices can only be dismissed if it is no longer possible for the apprentice to be trained. It may also be possible to dismiss in cases of very serious misconduct and where the employer’s business has closed or fundamentally changed (which goes further than the standard definition of redundancy). Common law apprentices are also entitled to enhanced damages on early termination of the apprenticeship. In comparison, apprentices engaged under the statutory regime have the same rights as ordinary employees.

Another tricky issue is what happens when the apprenticeship has finished and there is no further role available. There are conflicting views as to whether a failure to take on an apprentice on expiry of their apprenticeship is a dismissal (and so whether the apprentice could bring a claim for unfair dismissal). If there is a dismissal, it is likely to be for some other substantial reason, rather than redundancy. The safest course for employers is therefore to ensure that a full and fair process is followed if the intention is not to keep the apprentice on, especially if the apprentice has more than two years’ service.

More generally, there are several protections that are enjoyed by all apprentices: importantly, for example, apprentices are entitled to be paid at least the national minimum wage. For apprentices who are under 19 or in the first year of their training, this is at the apprentice rate. An apprentice who is over 19 and has been an apprentice for more than 12 months is entitled to the rate appropriate for their age (so an apprentice who is 25 or over and has been an apprentice for more than 12 months would be entitled to the national living wage). Payment should also cover any time spent in training.

Employers should offer apprentices the same terms of employment as other employees of similar status or with the same length of service. Failure to do so could place them at risk of claims for age discrimination (as apprentices as a group tend to be younger than the rest of the workforce). However, although apprenticeships are for a fixed term, the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 do not apply to them.

If an employer is required to pay the apprenticeship levy it cannot recover this charge from payments made to an apprentice. Further, levy-paying employers cannot usually ask their apprentices to contribute financially to their training (including asking them to repay course fees if they leave employment early).

It’s worth taking time to consider the issues that arise when employing an apprentice, to make sure the business does not end up with unexpected liabilities.

Abigail Etchells is a senior associate at Stevens & Bolton