Do your apprenticeship contracts fall within the scope of the new rules on apprentices?
With the apprenticeship levy in full swing it is important to note that apprenticeship contracts need to be such that they fall within the scope of the new rules on apprentices, rather than the old common-law rules which could land you in hot water!
Why, you might ask? Well, a recent tribunal ruling ended with the claimant being awarded £25,000! The claimant was an apprentice who had his four year apprenticeship brought to an abrupt end by reason of redundancy. The case is Kinnear v Marley Eternit Ltd. Mr Kinnear was employed on a four year apprenticeship as a roofer/tiler. Approximately 18 months in to the apprenticeship he was made redundant. He brought a claim for breach of contract and was successful. The Tribunal awarded 122 weeks’ pay for the remainder of the apprenticeship, plus damages.
Apprentices in Scotland - pretty much protected
That ruling came through the Scottish Tribunal where the rules for terminating apprentices early are strict and a dismissal would only be seen as fair if the apprentice was ‘untrainable’. So apprentices in Scotland are pretty much protected and hold even greater rights than employees.
If, however, the case was heard in England or Wales the story would be different had the contract been drafted in line with the new rules for apprentices which we reported on in a previous article (see all articles Calls from the advice line - Apprentices and Apprenticeships and the Apprenticeship Levy). That law allows apprentices to be treated in much the same as an employee which includes no rights to claim unfair dismissal below the two years’ service qualifying period.
We cannot stress enough the importance of getting the wording correct for contracts being issued to apprentices. It literally could make or break you which is evident from the Kinnear case. The maximum award for a breach of contract in Scotland is £25,000, it could therefore have been a lot more had the Tribunal limits not been restricted by the capping. The award also included future loss of earnings; because of his age it was proving difficult for the claimant to get another apprenticeship to enable him to complete his training.
Please contact the advice line if you are considering employing an apprentice or already have an apprentice in your employment. We can draft a water tight contract for you or indeed review the one that you currently have in place to ensure that you do not end up in the same predicament as the respondent in this case.
For all HR matters contact us. Author: Ruth Frank, Employment Law Consultant, Quest
