29th June 2021

Apprenticeships in Scotland: You’re hired! You’re fired!

We are all familiar with The Apprentice: the cut-throat popular television programme whereby budding entrepreneurs ruthlessly compete to secure investment from Lord Sugar. The Apprentice is, in my view, synonymous with Lord Sugar pointing his finger at a candidate and saying the infamous words ‘you’re fired’. The programme gives the impression that being an apprentice involves a testing recruitment process, tricky business tasks, boardroom pitches and a trip to a greasy spoon if you fail the day’s task – all before you are hired.

In reality, apprentices and apprenticeships in Scotland are different. Apprenticeships are work-based training programmes which allow employers to develop an apprentice’s skills by providing them with experienced training and ‘hands-on’ experience. An apprenticeship will be for a fixed term, usually between one and four years, or will last until a certain qualification level has been reached. Apprentices are entitled to a minimum hourly wage and they usually work for approximately 35 hours per week, although will often attend a college or similar for part of their time.

The most important feature of a contract of apprenticeship is training. In fact, training is the primary purpose of any contract of apprenticeship. It is really important that employers remember this. We understand that it is natural for employers to be more focussed on the quality and execution of work by the apprentice but, in the eyes of the law, this is secondary to training.

From an employer’s point of view, you may think that employing an apprentice comes with less risk as a cheap source of labour. Think again! An apprentice has increased rights, especially when it comes to the termination of their employment. This was made clear in the case of Revenue and Customs v Jones and others [2014] UKEAT/0458/13, whereby it was stated:

The ordinary law as to dismissal does not apply to contracts of apprenticeship. It can be brought to an end by some fundamental frustrating event or repudiatory act but not by conduct that would ordinarily justify dismissal. It would appear that the frustrating or repudiatory act must have the effect of fundamentally undermining the ability to teach the apprentice.

Therefore, terminating a contract of apprenticeship is difficult for an employer. As we know, the primary purpose of a contract of apprenticeship is training, and it is this that provides the apprentice with increased legal protection. Because of this, there are very limited grounds on which an employer can lawfully terminate a contract of apprenticeship before the expiry of the fixed term.

The apprentice’s conduct must be so bad that it becomes impossible for the employer to teach them their trade (Maria Gatillo v GX Consultancy Ltd [2012] 12 WLUK 604). This is a test which has been widely used by Tribunals when determining cases relative to the early termination of a contract of apprenticeship, and it is a high burden of proof for the employer to reach. It also links to the primary purpose of the contract being training, in that if the apprentice is not performing as well as the employer would like, the onus is on the employer to meet with the apprentice and air their concerns relative to the apprentice’s performance and any lack of progress. The employer should also set the apprentice targets for improvement. The existence of such evidence will be taken into consideration by Tribunals, therefore it is important that employers check in with their apprentices regularly and make sure that they are being trained and monitored correctly.

What about redundancy for apprentices? Surely they can be the first to go if the business is struggling? There are only two reasons whereby an employer can make an apprentice redundant: (1) the business is to close; or (2) the character of the business goes through a fundamental change. For example, it is not enough for an employer to say that, because of the COVID-19 pandemic, there is a lack of work for the apprentice and so they are to be made redundant. Remember, the primary purpose is training.  An apprentice who is terminated unlawfully can claim unfair dismissal (if they have been employed for 2 years’). However, if they have not, the apprentice can also claim for breach of contract with potential for significant damages. 

Takeaway tips for employers:

  • Make sure to issue the apprentice with an employment contract.
  • Remember, training is the primary purpose!
  • Meet with the apprentice if you have concerns about their standard of work or progress and set targets for improvement.
  • Beware of unlawful termination.
  • Seek advice if you are unsure of your obligations and duties.

If you need any advice regarding apprentices or apprenticeships, please get in touch with Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Blythe Petrie, Trainee Solicitor
Employment Law
Blackadders LLP
@EmpLawyerBlythe

www.blackadders.co.uk

 

 

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