Be Aware – February 2023

Be Aware – February 2023

IGA Services, Legal & HR

Employing Apprentices

Apprenticeships are common within the motor industry and can be very beneficial for both apprentice and employer. However as with all staffing decisions, you do need to understand them in order to ensure they are right for you and your business.

What is an apprenticeship

An apprenticeship is a work-based training programme which leads to nationally recognised qualifications. It usually permits the apprentice to attend day release training whilst combining attending the workplace and working alongside experienced employees/workers. It can either be for a fixed term period or until a level of qualification is reached.

Forms of apprenticeship

In 2011 the Apprenticeships, Skills Children and Learning Act 2009 (ASCLA 2009) came into force in England and Wales which provides broadly two legal forms of apprenticeship;

  • a Contract of Apprenticeship, and
  • an Apprenticeship Agreement.

The apprentice will be an employee under both forms of apprenticeship, but the employer will have certain additional responsibilities for an apprentice employed under a Contract of Apprenticeship, particularly relating to terminating the apprenticeship.

Contract of Apprenticeship

Prior to the introduction of ASCLA 2009, the status of an apprenticeship was governed by case law, with the Court of Appeal finding a modern apprenticeship could still constitute a common law contract of apprenticeship as long as it satisfied traditional criteria relating to the duration of the contract and the employer’s obligations under it.

As a general rule, a Contract of Apprenticeship is the default legal position, and this will exist where you and an apprentice entered into a work-based training programme but no or no ASCLA approved written agreement is entered into.

Under a Contract of Apprenticeship, you are required to employ an apprentice until they have been trained to the agreed level. It is particularly difficult for employers to fairly terminate the apprenticeship prior to reaching the required qualification. Managing apprentices is made more difficult as the court guidance on when a Contract of Apprenticeship can be terminated lawfully is very restrictive, i.e., an employer has to show that it is virtually impossible for an apprentice to complete their apprenticeship. Unlike employees who can potentially be lawfully dismissed for matters such as capability, conduct, gross misconduct or redundancy, it is not straightforward to dismiss someone under a contract of apprenticeship for such reasons.

In the event of a wrongful termination an apprentice may have a claim for damages arising from breach of the apprenticeship contract (for how much longer the apprenticeship should have run until its normal end) plus potentially a claim for enhanced damages due to a loss of career prospects.  Note an apprentice can also  bring a claim in the County Court for up to 6 years from termination (as opposed to 3 months in an employment tribunal).

Approved English Apprenticeship Agreement

A traditional contract of apprenticeship is a contract under which the apprentice is bound to the employer in order to learn a trade, and the employer agrees to teach and instruct him. In an attempt to improve training for employment, the government first introduced a statutory scheme of apprenticeship agreements in 2011 under the Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA 2009). A simplified scheme was introduced from 26 May 2015, but the old scheme continues to operate under transitional provisions.

This form of apprenticeship seeks to balance the needs of the apprentice with the needs of the employer.  Within this framework an apprentice has normal Employment Law rights as the contract is deemed to be a contract of employment (and therefore the apprentice will have the status of employee) rather than a contract of apprenticeship. However, the agreement must satisfy certain conditions under ASCLA 2009 and be in a prescribed form.

There are a number of conditions required to qualify as an apprenticeship agreement which are:

  • The agreement must provide for the apprentice to work for an employer for reward in a sector for which ‘an approved apprenticeship standard’ has been published;
  • The agreement must provide for the apprentice to receiving training in order to assist them to achieve the approved apprenticeship standard in the work done under the agreement;
  • The agreement must specify the amount of time to be spent on off-the-job training;
  • The employer must agree a practical period (i.e., the period for which the apprentice is expected to work and receive training under the agreement) which takes into account:-
    • the apprentice’s knowledge and skills,
    • whether the work and training is to be undertaken by the apprentice on a full-time or part-time basis, and
    • the relevant apprenticeship standard;
  • The practical period must be not less than 12 months (unless the apprentice has been made redundant in the last year of another approved English apprenticeship working towards the same apprenticeship standard, in which case the new agreement can finish on the same day as the old one would have); and
  • The agreement must specify the practical period.

If any agreement is not in the correct format the protections of the ASCLA will not apply. The position in Wales is slightly different in terms of the requirements under ASCLA. Clearly, we would also not advise employers to simply issue terms and conditions with the above bullet points and would strongly advise members to use a correct template of the ASCLA compliant agreement. Members of the IGA have access to template agreements on the IGA website, so we would strongly suggest that you use one of the approved formats in addition to any training agreements when taking on an apprentice.

Employers will still need to take care when dismissing apprentices under this type of apprenticeship where those apprentices have acquired sufficient continuous service for Employment Law rights. Once the apprentice has acquired two years’ employment, the employer will need to be able to demonstrate both a fair reason.

We would certainly recommend that all apprentices are placed on an apprenticeship agreement.

Note the ASCLA does not apply to Scotland and Northern Ireland. The situation therefore terminating apprenticeships in Scotland and Northern Ireland remains riskier for the employer as they cannot avail themselves of the protection that the individual is treated as an employee (not an apprentice) if they are on the correct form of template agreement.

Training agreements

When employing an apprentice an employer can either arrange training programme themselves or enlist the aid of a third-party service who can assist with funding and arranging college courses. However, it is arranged most colleges will look to enter into a training agreement between the college the employer and the apprentice.

It should be noted that this is designed to govern the training requirements of the apprenticeship. It is not a replacement for an apprenticeship agreement between the employer an apprentice.

Again, members of the RMIF are strongly advised to utilise the template agreements on the RMIF website in addition to any training agreements.

Wages

Since 1st October 2010 apprentices have been entitled to a national minimum wage rate. Due to the apprentice’s reduced skill this rate is proportionately lower. The current apprentice rate as of April 2022 is £4.81 and applies where the apprentice is under 19 or over 19 and in the first year of their apprenticeship. From April 2023 this will go up to £5.28.

It should be noted that as the employer you will be liable for pay whilst the apprentice is at college.

Conclusion

Apprenticeships are a common and useful tool and allow employers to provide training and pass on their knowledge to the next generation. However, you will still need to take care when considering an apprenticeship. How an apprenticeship is set up will determine how easily it is to manage the apprentice, the training and if necessary, any disciplinary actions including dismissal.

We strongly advise that you do not take on any apprentices without a written apprenticeship agreement that complies with the ASCLA requirements. Neither the training agreement between you, the college and the apprentice nor any standard employment contracts are sufficient. Failing to do so will significantly affect your ability to manage the apprentice and prevent you from dismissing them until they are fully trained. The RMI provides standard templates of apprenticeship agreements for England, Northern Ireland, Scotland and Wales for free.

Dismissing new employees for absence/illness

“I have recently taken on an employee, about a month ago, but she isn’t proving to be very reliable.  She is a receptionist but has already had 5 days off with a variety of medical complaints. What do I do? I don’t want to be unfair to her but I’ve got a business to run and it is very difficult to cope without the receptionist taking the calls?”

Many employers believe that it is more difficult to dismiss an employee who is ill than one who has committed an act of misconduct.  Provided the employee has well under 2 years’ service (and note that normal unfair dismissal rights actually apply a week below two years) that is not necessarily the case.

When dealing with employees with under 2 years’ service, an employer is perfectly entitled to dismiss an employee if their illness/absence creates difficulties and is not always necessary to go through the full disciplinary procedure in terms of medical evidence and written warnings before taking that decision.

There are however caveats to that general advice. Absence issues can sometimes give rise to claims, and the most common ‘banana skins’ for employers when dismissing employees with short service who are absent, are as follows:

  1. The risk that any absence could be related to a long term condition, so as to satisfy a disability under the Equality Act 2010. To qualify as a disability the condition has to be long term and have a substantial adverse effect on day-to-day activities.  It is sometimes possible that (even if they appear to be short term issues) absences are linked to some longer term condition. Clearly if they are coughs, colds or other minor issues that is unlikely.
  2. Be careful also that any absences are not related to pregnancy related illness or similar issues, as that can give rise to claims for sex and pregnancy discrimination.

In the scenario described above therefore if the employer had satisfied itself that those risks do not apply then the next step is very much at the employer’s discretion. It could of course be sympathetic, give a warning and try to improve the issues, but if it is too disruptive it could take a view and invite the employee to a meeting to consider dismissal on the grounds of absence.

If the employer decides to proceed, it is usually advisable to lay a basic paper trail, involving a written invite to a hearing to consider dismissal on the grounds of absence, a minuted discussion regarding the issue and a decision letter, ideally with the right of appeal. Although not following that procedure wouldn’t necessarily give rise to claims, by doing so the employer lays the foundation of a defence in the Tribunal, if the employee should try to claim that they were dismissed for any automatically unfair reason (most commonly discrimination, whistle-blowing or asserting statutory rights) for which length of service is not required to bring claims in the Tribunal.

The Retained EU Law (Revocation and Reform) Bill

This could either be the biggest development in Employment Law for many years, or something that turns into a false dawn, depending on what the Government does next.

You may be aware that, following Brexit, the Bill is looking to scrap or replace retained EU Laws.  The perceived advantage is that the UK could free itself from unnecessary EU Regulation, but the perceived concern is that because of the entrenched nature of EU Law, if the matters are rushed it could cause chaos and lack of certainty for business.

The Bill contains a “sunset clause” which means that many EU Laws will simply disappear unless replaced.  It could impact a wide area of Employment Law such as the Working Time Regulations, agency workers, maternity regulations, and TUPE, to name but some.

In Conclusion

Whether this is a good or a bad thing is likely to depend where you stood on Brexit, and how well this is implemented. Removing unnecessary regulations may indeed result in economic benefits. However a sunset clause may result in replacement legislation that has not been fully though through or significant holes and a chaotic legal and regulatory situation.

The original deadline was the 31st December 2023 but many think the Government may extend the deadline for implementation, We will or course keep you informed as this progresses.

Subject Access Requests

“When I receive a Subject Access Request do I have to provide everything with a person’s name on?”

The Short answer is no. Whilst a person’s name will be personal data, this does not mean the whole content of any document becomes their personal data. There is no need to disclose the whole of an email, or any document just because they are addressed to an individual. Any content not related to an individual is not personal data and can be withheld/redacted. Here is an example straight from the Information Commissioner’s Office:

“An employee makes a SAR for all of the information you hold about them. During your search for their personal data, you find 2000 emails which the employee is copied into as a recipient. Other than their name and email address, the content of the emails does not relate to the employee or contain the employee’s personal data.

You do not have to provide the employee with a copy of each email (with the personal information of third parties redacted). Since the only personal data which relates to them is their name and email address, it is sufficient to advise them that you identified their name and email address on 2000 emails and disclose to them the name contained on those emails, e.g. John Smith, and the email address contained on those emails, e.g. JohnSmith@org.co.uk. Alternatively you could provide one email with other details redacted as a sample of the 2000 emails you hold. You should also clearly explain to the individual why this is the only information they are entitled to under the UK GDPR, but remember to provide them with supplementary information concerning the processing, e.g. retention periods for the emails.

However, if any of the content within the email relates to the individual, you should provide them with a copy of the email itself, redacted if necessary.”

In Conclusion,

Whilst the GDPR / Data Protection Act 2018 require you to confirm what personal data you hold, how you process it and to provide a copy upon request within 30 days, this does not give a data subject a right to anything and everything with their name on it. If you do receive a request for information that you do not believe is personal data, we would advise that you confirm to the subject that you hold the document, confirm the personal data contained and either withhold the document or redact any information that is not personal to the subject (depending on how much). We would also advise that you set it aside a full set of the original documents so that this can be provided upon request to either the Information Commissioners Office or a court.

General Note

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us in 01788 225 908 at any stage for advice and assistance as appropriate.