Legal Update: A Note on Apprenticeships
9 November 2015
Mayer Brown Legal Update
Apprenticeships have been in the news a lot over the last few months, most recently with the publication of an Ofsted report on 22 October 2015. As you can see from the government's press release, the report criticises the quality of apprenticeships, raising the concern that the apprenticeship brand is being de-valued at a time when the government is working hard to increase the amount of vocational training taking place. Whilst we applaud the initiative to increase the number of apprenticeship opportunities, employers should be aware of the following important issues which arise in relation to apprenticeships:
The difference between a contract of apprenticeship and an apprenticeship agreement
The rights of an apprentice can vary significantly according to the basis on which they are retained. We would recommend that any apprentices are engaged under an apprenticeship agreement under the Apprenticeship, Skills, Children and Learning Act 2009 (“ASCLA”) rather than under a common law contract of apprenticeship. This is because apprentices engaged under contracts of apprenticeship benefit from enhanced employment protection and it is extremely difficult to bring the apprenticeship to an end if it is not working out; in a nutshell, it is much easier to terminate an apprenticeship agreement under ASCLA. The differences between an apprenticeship agreement and a common law contract of apprenticeship are subtle, and so care should be taken when drafting them to ensure that you retain the ability to terminate as you would with an ordinary employee. You will, therefore, need to be clear as to the basis on which you are engaging an apprentice.
Earlier this year, the ASCLA was amended by the Deregulation Act 2015, introducing the concept of an “approved English apprenticeship agreement” with effect from 26 May 2015. In order to decide if you need to make any changes to your template apprenticeship agreement in light of the new legislation, the first step is to determine if there is a relevant standard published in respect of your apprenticeships. To be an approved English apprenticeship, there needs to be a relevant standard published – if there is no relevant standard, you do not need to make any changes and the apprenticeship agreement would operate under the old regime. If a relevant standard does exist, this needs to be referenced in the agreement and the agreement would no longer constitute an “apprenticeship agreement” but an “approved English apprenticeship agreement”.