The agreement between an apprentice and their employer is, by its nature, complicated. There is a lot of confusion about these contracts – for example, is it an employment contract? Is it a fixed term contract?
In fact, apprentices have a very specific legal status. They enjoy certain rights that are not extended to other workers or employees – including protection from certain forms of dismissal. It is important that you understand the nature of the contract, and how it affects your ability to dismiss apprentices.
What is a Fixed Term Contract?
A fixed term contract is a specific type of employment contract. It differs from a conventional employment contract in that it ends at a particular time. It might end, for example, on a specified date, or it might end when the employee has completed a defined task.
Fixed term contracts are common. Seasonal workers, or those carrying out maternity cover, might have fixed term contracts. Employees who are on fixed term contracts have a number of special rights, including the right not to be treated less favourably than those on conventional contracts doing the same or a similar job.
How Does this Relate to Apprentices?
It is often thought that apprentices are employees with fixed term contracts. In fact, this is not the case. The Fixed-Term Employee (Prevention of Less Favourable Treatment) Regulations exclude apprentices from their provisions.
It is easy to see how the confusion arises. In practical terms, the apprentice has a set date on which their contract will end, or a set event that will trigger the end of their contract. But the fact that apprentices’ contracts are not legally considered to be fixed term has major implications for the way in which employers can dismiss these individuals.
So I can’t Sack an Apprentice?
This depends on the circumstances. First, it is important to understand the implications for dismissal at the end of the contract.
Generally speaking, you have no legal obligation to provide the apprentice with a job once their contract has ended. The exception to this is when a job is promised within the apprentice agreement. If their contract is not renewed at the end of the apprenticeship, the apprentice will be considered to have been dismissed. Apprenticeships are considered to have a specific purpose, and that purpose is the training of the apprentice. So, when that training is complete, the contract will end – and the apprentice will not be considered to have been made redundant. Instead, they will be legally considered to have been dismissed for ‘some other substantial reason’.
The nature of an apprentice’s contract also makes it very difficult for an employer to sack them during the course of their apprenticeship. The onus is, of course, on the employer to show that they are dismissing the apprentice fairly and reasonably. You cannot simply give an apprentice notice that they are going to be dismissed if, for example, you cannot afford to keep them on.
How Can I Protect Myself?
This does not mean, however, that it is impossible to sack an apprentice. Consider a situation, for example, in which you catch an apprentice stealing from the till. In this case you would (quite reasonably) probably want to know how you can sack them.
In order to protect yourself, you should consider having disciplinary procedures written into the apprentice agreement. You should set out exactly what you think constitutes fair and reasonable grounds for dismissal. You should read the article elsewhere on this site for more information on what this means. If the apprentice breaks the terms of the agreement, claims that they might have against you, for example for lost wages, will then be mitigated or eliminated.
It is also absolutely vital that you understand the costs of taking on an apprentice before you begin. It is common for businesses to take on an apprentice, realise they can’t afford it, and then try to dismiss them – only to find themselves the subject of an employment tribunal. Again, you may wish to read the breakdown of apprenticeship costs elsewhere on this site.
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