A. The most important factor here is where is the client based? This information will alter the advice because there are different rules for apprentices in Scotland than there are in England and Wales.
If your client is based in England and Wales, they should be using Apprenticeship Agreements. The importance of this is that it’s an agreement between the employer and the apprentice for the apprentice to do work for the employer. The agreement will be treated as if it was a normal contract of employment so the apprentice can be treated like a ‘normal’ employee when dealing with their capability or conduct. Any contractual capability procedure will still need to be followed as their apprentice may have the right to not be unfairly dismissed if they have two years’ service with your client.
If the apprentice is still at the beginning of their scheme, whilst dismissal can take place for poor performance, your client may want to reconsider taking action so early. It may be the case that the apprentice just needs some extra time, training or support to get up to the standard your client accepts. Just because an apprenticeship agreement allows a dismissal does not mean that this is always the best course of action for your client and, if the case ever did end up at tribunal, it is likely your client would have been expected to allow some special treatment for the apprentice.
For clients based in Scotland, there apprentices remain on a contract of apprenticeship. This is the traditional contract under which the apprentice is taken on with learning the focus of their contract, not doing work. This focus is important because it means your client cannot treat the apprentice as a normal employee and needs to give them greater protection. Your client will be expected to ‘put up’ with the apprentice and engage with the learning provider to support the apprentice at work.
If normal procedures are used to remove the apprentice than your client may face a substutianial liability if the apprentice is deemed to be unfairly dismissed. Not only will they have to compensate the apprentice for the remaining period of the apprenticeship, they may have to pay a sum for future losses after the end of the contract. Therefore, it’s important that any of your clients that are based in Scotland are aware of these additional rights and are taking the extra steps to support the apprentice with work.
For more HR Expert advice check out our Connect page. We cover all aspects of HR ranging from Employment Law, Commercial Health & Safety and Commercial Legal. Our advisors will provide professional assistance.
