Most employers are aware of the basic concept of what an apprenticeship is but how many understand the important distinction between engaging an apprentice under a traditional 'contract of apprenticeship' as opposed to the more modern form of apprenticeship known as an 'apprenticeship agreement'?
To appreciate the difference it is worth remembering that the concept of apprenticeship originally came about in the Middle Ages. Back then, it was common for master craftsmen to take youngsters on and teach them a skilled trade. Typically, the arrangement consisted of the apprentice being provided with board and lodging but often little if any pay. Over time it became commonly understood that the primary purpose of an apprenticeship was to provide training and that the actual work carried out by the apprentice was a secondary consideration.
It's not often that we need to give readers a history lesson but in the present case an appreciation of how the concept of apprenticeships came about is important to understanding the development of the common law in relation to apprentices and their employment rights.
In our experience many employers fail to appreciate that an apprentice engaged under a traditional contract of apprenticeship enjoy enhanced employment rights which make the termination of their employment, on the grounds say of redundancy, poor performance or misconduct far from straightforward. The development of these enhanced rights was strongly influenced by the central role occupied by training and the Courts' desire to give greater protection to apprentices for that reason. An interesting case which is illustrative of the approach taken by the Courts is the case of Dunk v George Waller & Sons.
Mr Dunk was engaged as an apprentice for a fixed term of 4 years. Initially Mr Dunk's apprenticeship progressed well. However, a few years down the line things were not going quite as well and Mr Dunk's employment was eventually terminated for performance related reasons. Mr Dunk subsequently issued proceedings against George Walker & Sons relying on his status as an apprentice in support of his claim for damages. Mr Dunk's claim was successful and in finding for him the Court stated that:
"An apprenticeship agreement is of a special character... he is entitled to damages for his loss of earnings and of training during the remainder of the term of apprenticeship agreement and also for the diminution of his future prospects."
Employers need to be clear then where apprentices are engaged under common law contracts of apprenticeships those apprentices will enjoy enhanced rights on termination and that the damages that can be awarded to apprentices in circumstances where their apprenticeships have been unfairly terminated can be significant. Damages in these types of claims will often include sums to reflect the unexpired term of the apprenticeship, the loss of training and critically also the impact that the apprentice's loss of training will have on his or her future earnings.
The purpose of this Employment Express is not to deter employers from engaging apprentices. Often the decision to take on apprentices is hugely beneficial both to the apprentice and the employer. However, it is important that employers who engage apprentices under the traditional form of apprentice agreement appreciate the rights and obligations that that type of arrangement will create. Alternatively, more and more employers (perhaps aware of the sometimes onerous employment rights afforded to apprentices) are choosing to engage their apprentices under the more modern form of apprenticeship known as an apprenticeship agreement. Apprenticeship agreements were introduced by the Apprenticeships, Skills, Children and Learning Act 2009 and allow employers (who comply with the necessary requirements) to engage apprentices as employees in circumstances where the additional enhanced rights enjoyed by the traditional apprenticeship model do not apply. The potential benefits of creating an apprenticeship agreement as opposed to a contract of apprenticeship are obvious in so far as employers can then treat their apprentices in the same way as they would a standard (non-apprenticed) employee.
Please feel free to contact Nathan Combes for more information on apprenticeships or for details on how to create an apprenticeship agreement.
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