There could be a number of reasons why you may be considering bringing an apprentice’s employment to an end. Before taking action, it helps to understand your rights and responsibilities, and those of the apprentice, to avoid potential disputes over the dismissal decision or process.
The following guide provides important practical advice for employers looking at employment law issues and HR concerns when dismissing an apprentice.
How to dismiss an apprentice
The rules relating to dismissing an apprentice will depend on the type of apprenticeship in place and the nature of the apprenticeship agreement that you have with the individual.
Different rules will apply to a traditional common law apprenticeship than for the more modern statutory apprenticeships. These can be categorised in the following ways:
- Contract of apprenticeship: under this traditional form of apprenticeship, the apprentice has employee status. This means they have the usual rights and benefits that a typical employee has, as well as enhanced rights that protect them against dismissal for the duration of their apprenticeship.
- Apprenticeship agreement, approved English apprenticeship agreement or alternative English apprenticeship: under any of these more modern types of apprenticeship, the apprentice again has employee status but the individual will not have the benefit of enhanced rights or enjoy the same protection from dismissal as afforded under a traditional apprenticeship.
Ending a ‘traditional’ apprenticeship
A traditional apprenticeship is one that is neither an apprenticeship agreement nor an approved or alternative English apprenticeship, where specific statutory conditions must be met for an arrangement to be a modern apprenticeship, including a written agreement in the prescribed form.
Apprentices operating under a contract of apprenticeship have a very specific legal status, where they enjoy certain rights that are not extended to other employees, including protection from certain forms of dismissal. The contract of apprenticeship is also a distinct entity from other employment contracts, where its essential purpose is to enable the apprentice to gain the required qualification through training, such that undertaking work for the employer is secondary.
As a contract of apprenticeship is primarily entered into to enable the apprentice to receive training and obtain qualifications, it cannot lawfully be terminated prior to expiry of the contract, except in the following limited circumstances:
- If they are wholly untrainable
- By mutual consent
- When their apprenticeship comes to an end
- By reason of redundancy in exceptional cases
They are wholly untrainable
When relying on an apprentice being untrainable as a reason for dismissal, there is a very high threshold here, where you would need clear evidence that they are incapable of performing the most basic of duties or seriously neglectful of those duties, or are guilty of some form of gross misconduct.
Evidence of poor performance in itself would not be sufficient to demonstrate that a traditional apprentice was untrainable. You must be able to show that significant assistance was first given to the apprentice, without improvement, and they would not be able to pass the required training.
In cases of misconduct or neglect of duties, you must be able to demonstrate that the conduct of the apprentice is such that it renders them impossible to teach. The standard to successfully argue that a traditional apprentice is guilty of gross misconduct has also been set very high, and much higher than that required for a normal employee. This means that an issue that may be classed as misconduct so serious that it would justify summary dismissal for a standard employee may not be sufficient to dismiss a traditional apprentice.
Even where you have a clear legal and evidential basis upon which to dismiss an apprentice, you will still need to show that you have followed a fair disciplinary process and acted reasonably in all the circumstances. Most reputable employers will have in place written disciplinary and dismissal procedures, drawn up in accordance with the ACAS Code of Practice. It is imperative that you follow these procedures or carefully follow the guidance set out in the ACAS Code.
If you fail to abide by your own policies and procedures, or if you do not have any procedures in place, it will be much more difficult to demonstrate that you have dismissed your apprentice fairly and acted reasonably.
By mutual consent
Even when relying on mutual consent when dismissing an apprentice, extreme caution must still be exercised. The agreement must be mutual, where any evidence that you have put pressure on an apprentice to agree to the early termination of their apprenticeship may expose you to legal action.
In these cases, it is often best to put in place a settlement agreement in which the apprentice waives the right to bring a tribunal claim against you in return for a compensatory payment. To be legally binding, however, the apprentice would need to seek independent legal advice. Having been advised of their enhanced employment rights, this could easily increase their bargaining power to achieve a greater settlement figure or even dissuade an apprentice from agreeing to leave.
Their apprenticeship comes to an end
In many cases it can be safer to wait until the end of the apprenticeship, at which stage, save except where any written contract of apprenticeship provides for the offer of a job following completion of their training, it is open to you to dismiss an apprentice if you do not want to offer them a permanent position.
By reason of redundancy
In limited cases, you may also be able to dismiss an apprentice prior to the end of their apprenticeship by reason of redundancy, although the usual grounds for redundancy do not apply to contracts of apprenticeship. To be able to rely on redundancy, you must show that your business has undergone a fundamental change in its character or that you have closed completely.
Ending a statutory apprenticeship
An apprentice who has been engaged under a modern statutory apprenticeship is very different to the traditional apprentice, in that the work to be carried out for the employer is the primary factor, where they need only spend a small percentage of their time in education or training for their final qualification.
These types of apprentice agreement have the status of a contract of service, where the apprentice is only entitled to the statutory employment protections granted to ordinary employees. This means that without the benefit of enhanced rights, the usual rules relating to dismissal will apply.
For the modern apprentice with less than two years service, as long as there are no protected characteristics or special reasons, they can be dismissed, although you must still follow any disciplinary and dismissal procedures as set out under the apprenticeship agreement, otherwise risk being in breach of contract.
If the apprentice has more than two years service, it is permissible to dismiss them in the same way as any other employee, although you must have a genuine and valid reason to do so. Typically, an employer will consider dismissing an apprentice where there are serious capability or conduct issues, although you must provide the apprentice with a suitable opportunity to address any performance or misconduct issues by following a fair disciplinary process.
Unless any poor performance or misconduct is especially serious, such that it would warrant summary dismissal without notice or pay in lieu of notice, you could initially provide them with a written warning or series of warnings. You must also give them an adequate opportunity to appeal any decision to dismiss.
In essence, if the matter came before an employment tribunal, you must be able to demonstrate that you that you conducted a proper and thorough investigation before dismissing a modern apprentice with more than two years service, and that you acted reasonably in all the circumstances.
Apprentice rights on dismissal
Apprentices employed under traditional contracts of apprenticeship have enhanced protection from early termination compared to ordinary employees. This means that if their apprenticeship is terminated prior to the end of the fixed term, thereby depriving the apprentice of their training and qualification, the apprentice is entitled to claim damages for breach of contract.
This can result in a substantial award of compensation, including loss of earnings based on the wages they would otherwise have been paid for the remainder of the fixed term, as well as the cost of training for the balance of their studies.
The traditional apprentice could even claim enhanced contractual damages to compensate for the effect on their future career prospects and earning potential as a qualified person, where the early termination of their apprenticeship has made them much less employable.
For apprentices engaged under a modern style apprenticeship, they will still benefit from normal statutory employment protections, including the right to claim unfair dismissal before an employment tribunal, subject to them being employed for a continuous period of at least two years.
Save except in cases of gross misconduct where an apprentice can be dismissed summarily, without notice or pay in lieu of notice, the modern apprentice will also be entitled to a minimum period of notice. Where sufficient notice is not provided on dismissal, this will equate to a claim for wrongful dismissal.
How should dismissing an apprentice be handled from a HR perspective?
When dismissing an apprentice it is important that you fully understand the nature of the contract, and how this affects your ability to terminate their apprenticeship prior to its completion. It is also important to bear in mind that even where you have a valid and legally permissible reason to dismiss an apprentice, in most cases you must still act fairly and reasonably.
Given that the traditional apprentice has far greater protection than the modern apprentice, with the potential to claim significantly higher compensation, it is crucial that you ensure that the statutory requirements for creating a modern-style apprenticeship are met from the outset. If not, you may find that you have inadvertently created a common law apprenticeship, giving the individual much greater rights and protection against dismissal.
The apprenticeship agreement should also specify what happens at the end of the apprenticeship, i.e. whether the employment will end or whether it can be expected to continue, and what could happen if the apprentice fails either academically or in terms of work performance.
Ideally, this agreement should incorporate your disciplinary procedures, and what you consider to be fair and reasonable grounds for dismissal. By clearly stipulating the circumstances in which the apprenticeship will end can often help to avoid problems at a later stage. This could include, for example, where:
- The apprentice fails to meet the study requirements, including passing relevant exams or participating in training
- The apprentice is continually neglectful of their duties
- The apprentice commits gross misconduct
- The apprenticeship comes to an end
Where at all possible, it is often better to wait until the successful completion of the apprenticeship before making any decision to dismiss. In this way, you can avoid any exposure to legal action and minimise any damage to your reputation as an apprentice provider. If dismissing an apprentice is unavoidable, you should always seek expert legal advice from an employment law specialist.
Dismissing an apprentice FAQs
Can you end an apprenticeship early?
Whether or not you can an end apprenticeship early will depend on whether the apprentice has a traditional common law apprenticeship or a modern statutory apprenticeship. The main difference between the two is that traditional apprentices have enhanced rights that protect them against dismissal for the duration of their apprenticeship, apart from in exceptional circumstances.
How much notice do you have to give an apprentice?
Apprentices will have the same rights, working conditions and protections as other employees, including being given a period of notice on termination of their apprenticeship. The apprenticeship agreement will typically contain the usual employee rights found in a contract of employment, including the notice period.
Can employers charge apprentices who leave?
Even if an employer is required to pay the apprenticeship levy it cannot usually ask their apprentices to contribute financially to their training, including asking them to repay their learning and assessment costs if they leave early.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Anne Morris is the founder and Managing Director of DavidsonMorris. A highly experienced lawyer, she is recognised by Chambers & Partners and the Legal 500 UK as a trusted adviser to multinationals, large corporates and SMEs, delivering strategic immigration and global mobility advice. Anne is also an active commentator on UK immigration and HR matters.
