With the apprenticeship levy launching in April many employers will be taking on apprentices for the first time. But they must be aware of strict rules protecting ‘traditional apprentices’ from unfair dismissal. A traditional apprenticeship is one that is not either an ‘apprenticeship agreement’ or an ‘approved English apprenticeship’.
Common law has built up a body of case law determining the type of arrangements that create a traditional apprenticeship. The case of Dunk v George Waller & Sons [1970] stated that the contract of apprenticeship is a distinct entity from other contracts of employment; its essential purpose is training and the execution of work for the employer is secondary.
Apprentices employed under traditional contracts of apprenticeship have enhanced protection from early termination compared to ordinary employees. In addition, apprentices can claim damages for loss of earnings and training for the remainder of the term and for loss of future career prospects.
Traditional apprentices can be dismissed if they become untrainable or if the business is unable to provide the required training. The standard to successfully argue that a traditional apprentice is untrainable has been set very high. For example:
- Redundancy is only appropriate where there is a complete closure of the business or the employer’s business undergoes a fundamental change in character.
- The standard required for a misconduct dismissal is much higher than that required for a normal employee. An issue that would be gross misconduct for a standard employee may not be sufficient to dismiss a traditional apprentice.
- Poor performance would not be sufficient to demonstrate that a traditional apprentice was ‘untrainable’. The business must be able to demonstrate that significant assistance was given to the individual and that they would not be able to pass the required training. Failing an exam is not sufficient to provide this evidence. Failing an exam three times after extensive extra one to one coaching, time off to study and other help may be enough to prove the employee was untrainable.
Other limited methods of termination are:
- Termination by mutual consent. Care must be taken to ensure that the agreement was mutual. Pressure put on an apprentice by an employer to agree may result in an unfair dismissal.
- Successful completion of the apprenticeship.
So employers must seek legal advice before taking any steps to dismiss a traditional apprentice.
Sarah Dillon is a director at ESP Law, which provides HR magazine's HR Legal Service
