This week (10th – 16th February) is National Apprenticeships week, an annual celebration of apprenticeships. To join in, we are taking a look at some questions we get asked by businesses about apprentices in England and Wales.
Whether you have an apprentice working in your business, you are considering whether an apprenticeship could be right for your workplace or you are simply curious, read on to find the answers to the burning questions below:
Are apprentices employees?
Yes, there is normally an employment relationship between a business and the apprentice. It’s important to be aware of this as it affects the rights and responsibilities you both have.
Do apprentices have employment law rights?
Yes, apprentices have statutory employment law rights like other employees, such as:
- The right not to be unfairly dismissed (although ‘ordinary’ unfair dismissal requires two years continuity of service)
- The right not to be discriminated against, harassed or victimised
- The right to time off in certain circumstances, such as for dependent care leave
- Rights in relation to pay (e.g protection from unlawful deductions from wages), working hours and annual leave
There are many other statutory employment law rights apprentices have, so it’s important to make sure that if you employ an apprentice, you treat them appropriately as this will help to protect your business.
It’s also important to bear in mind that apprentices can have additional protection from being dismissed if you don’t employ them on the right contract – an appropriately drafted apprenticeship agreement (see below for further information). Furthermore, just like any other employee, apprentices can be given better rights generally under the terms of their contract, (for example, enhanced sick pay, a greater holiday entitlement, more generous policies on time off work) so it’s important to check the position in your business if you are dealing with a particular issue / to treat an apprentice fairly regarding terms and conditions of employment.
Are apprentices entitled to the National Minimum Wage?
Yes, apprentices do need to be paid at least the National Minimum Wage, but it’s important to understand how this applies to them. Often, we find that whilst businesses are familiar with the National Minium Wage requirements for other employees, they are unaware of how it works for apprentices.
There is a National Minimum Wage apprentice rate. Apprentices are entitled to the apprentice rate if they’re either:
- aged under 19
- aged 19 or over and in the first year of their apprenticeship
Bear in mind that once an apprentice is past the first year of their apprenticeship, and they are aged 19 or over, then they are legally entitled to at least the National Minimum Wage for their age group. This will be higher than the apprentice rate. It can be easy to overlook this, so make sure you keep an eye on what minimum rate of pay your apprentice is entitled to, so your business doesn’t get caught out.
Can I give an apprentice a standard contract of employment?
We strongly advise against issuing an apprentice with the same contract as you would other employees (or other fixed term employees). The law around apprentices can be complex but the upshot is that it’s more beneficial for your business to use a type of employment contract called an apprentice agreement.
Not doing so makes it extremely difficult for your business to dismiss the apprentice prior to the end of the apprenticeship and in most cases damages for breach of contract are also potentially much greater than would usually be the case.
If your business is taking on an apprentice, please get in touch in good time as we can help by providing an apprentice agreement.
Are there any restrictions on the number of hours an apprentice can work?
Yes, there are rules about working time and rest breaks but these are not particular to apprentices. In most cases the rules that will apply will be those that are set out in the Working Time Regulations 1998. The age of your apprentice will affect the rules around working time and rest – if your apprentice is 18 or over they are considered an adult worker, if they are 15 – 17 years old and over compulsory school age they are a young worker. It’s important to be aware of the distinction and apply the law correctly, as you may expect there are more restrictive rules regarding working time for young workers as they are considered more vulnerable than adult workers. Need help with young workers and working time? Please get in touch.
In respect of adult workers, three common areas we get asked about are:
- Maximum weekly working hours – 48 hours (including overtime) averaged over a 17 week reference period (bear in mind adult workers can choose to opt out of the limit on maximum weekly working time by signing an opt-out agreement, for further information on this please get in touch)
- Daily rest break – 20 minutes if the employee will work more than 6 hours
- Daily rest period – 11 consecutive hours rest in each 24 hour period
Remember, to check your contracts of employment as you may have given your apprentice/s greater rights, for example to a longer daily rest break such as an hour for lunch.
What can I do if I take on an apprentice it doesn’t work out and I want to dismiss, for example because they are terrible at the job?
This will depend in part on when the situation arises – if the apprentice has under two years’ service and is employed on an appropriate apprenticeship agreement with the necessary contractual terms (including a break clause), you may be able to dismiss them quickly and easily. This is because employing the apprentice using an appropriate apprentice agreement means they don’t have any ‘special’ protection against dismissal and two years continuity of service is required for an ordinary unfair dismissal claim. However, there are claims apprentices can bring from day one of their employment such as discrimination and automatic unfair dismissal, so it’s vital to protect your business by seeking specific advice on the facts of your case before taking any action.
If your apprentice has two years continuity of service or more, you will usually need to follow an applicable fair process – for example, if the issue is poor performance following an appropriate performance management process. This is because such employees can complain to an employment tribunal if they have been unfairly dismissed. If the apprentice is not employed on an appropriate apprenticeship agreement the situation is more complicated and difficult to address.
If you are considering dismissing an apprentice or taking any other action, please get in touch for advice first as it’s vital to ensure you have the information you need to make the right decisions for your business.
Will the forthcoming Employment Rights Bill impact apprentices?
Yes, the key change many businesses are likely to be most concerned about is ordinary unfair dismissal becoming a day one right, this will apply in the case of apprentices too, even if they have been appropriately employed on an apprenticeship agreement.