Dismissal of Apprentices
There has been further consideration of apprenticeships in the light of the Covid-19 pandemic. If you are an apprentice, or want to be an apprentice, it has been reassuring to hear that the government has committed to increase funding for businesses taking on apprentices and expand ‘portable’ apprenticeships so that they can be taken between employers. Nevertheless, apprentices can still face dismissal especially in the current climate. Like other employees you have certain rights, such as the right to claim unfair dismissal (subject to being employed for at least 2 years) and protection against discrimination.
Types of apprenticeship
The type of apprenticeship you have is important as different rules will apply. There are basically two types of apprenticeship: contracts of apprenticeship and apprenticeship agreements.
Contract of apprenticeship
If you have this type of apprenticeship you have the usual rights and benefits that a typical employee has but in addition, you have enhanced rights that protect you against dismissal for the duration of your apprenticeship.
Apprenticeship agreement
These agreements comply with an ‘apprenticeship framework’ published by the government and incorporate a training element, generally through an external training provider. If you have this type of apprenticeship you have the same protection from dismissal as afforded under the traditional contract of apprenticeship but do not have the enhanced protection from dismissal.
Dismissal under a contract of apprenticeship
Your apprenticeship will usually be for a fixed term. Your employment cannot be lawfully terminated prior to the expiry of the fixed term except in limited circumstances. These are:
- If you are wholly untrainable – you are incapable of performing basic duties, are seriously neglectful of your duties or a guilty of some form of gross misconduct
- By mutual consent
- When your apprenticeship comes to an end
- By reason of redundancy in exceptional cases – your employer would need to show that their business has undergone a fundamental change in character or that it has closed completely.
If your employment is terminated before the expiry of the fixed term and none of the above exceptions apply, you are entitled to claim damages for breach of contract. This can include loss of earnings based on the wages you would have been paid for the remainder of the fixed term, plus the cost of training for the balance of your studies. You might even be able to claim compensation for the effect on your future job prospects and earning potential if the early termination of your apprenticeship has made you less employable.
The right to claim unfair dismissal (subject to being employed for at least 2 years) and protection against discrimination also apply (see below).
Dismissal under an apprenticeship agreement
You can be dismissed in the same way as any other employee, for example for misconduct, capability/performance or redundancy. Your employer should have a genuine and valid reason for dismissing you and follow a fair disciplinary process. If your proposed dismissal is on the grounds of capability/performance, you should be provided with a reasonable opportunity to address any performance issues.
Except in cases of gross misconduct where you can be dismissed without notice or pay in lieu of notice, you are entitled to a minimum period of notice. If no, or insufficient, notice is given, you may have a claim for wrongful dismissal. If you have more than two years’ service and your dismissal was not for a potentially fair reason and/or your employer didn’t carry out a fair procedure, you may have a claim for unfair dismissal. Compensation for unfair dismissal will predominantly be based on your loss of earnings.
You will also need two years’ service to claim a redundancy payment.
If you are redundant or facing redundancy, it is worth noting that in December 2020, the Education and Skills Funding Agency published guidance providing information about support available to redundant apprentices, or those apprentices at risk of redundancy. The guidance notes that the government will fund apprenticeship training for at least 12 weeks following redundancy to give you time to find alternative employment so that you can continue with your apprenticeship.
If your dismissal is on the basis of a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation) you may have a discrimination claim, irrespective of the type of apprenticeship you have or your length of service.
Lincs Law Employment Solicitors Can Help You
If you have been dismissed or are facing dismissal and are concerned about your situation we recommend you seek specific legal advice. Please contact one of our specialist employment law solicitors at Lincs Law on 01522 440512 for a free consultation or visit our website at www.lincslaw.coluk for more details on how we can help you.
Kathryn Bolton
Specialist Employment Law Solicitor
LincsLaw Employment Solicitors
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