Apprenticeships: jurisdictional variations
08 February 2024
It’s National Apprenticeship Week and, continuing our focus on hiring apprentices, we consider how the requirements for apprenticeships vary across the United Kingdom, and highlight key considerations for employers operating across different jurisdictions when hiring apprentices.
Over the last decade, the apprenticeship system in the United Kingdom has undergone significant change. The Apprenticeship Levy was introduced in 2017, and the Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA) introduced a statutory apprenticeship scheme across England and Wales – marking a shift away from the traditional common law apprenticeship. Whilst this has meant the use of apprentices has become far more common, and not only for traditional labour roles, it has meant differing rules now apply across the four nations.
The interactive map below provides a summary of the rules applicable to each nation.
May 2015 saw the introduction of the the Approved English Apprenticeship . Since then the Apprenticeship Agreement has rarely been used in England, although is still applicable in Wales.
As the name suggests, Approved English Apprenticeships apply only to apprenticeships in England and must also be in a prescribed form. They are usually for a fixed term.
Since 1 August 2020, approved English Apprenticeships have been following a “Standard” – that is, a curriculum designed to ensure that the apprentice gains the skills and knowledge needed to obtain their qualification.
Broadly speaking, in addition to the usual section 1 requirements under the Employment Rights Act 1996, an Approved English Apprenticeship must detail:
- the fact that it is a qualifying apprenticeship;
- that the agreement is governed by the laws of England and Wales;
- the start and end dates for the apprenticeship;
- the length of the practical period, during which the apprentice works and attends training. This must last for a minimum of 12 months;
- the Standard the apprentice is working towards and the level of that Standard;
- the amount of off-the-job training, during which the apprentice attends classes or other training away from their place of work. This must be completed during normal working hours and constitute a minimum of 20% of their total working hours (or average of 6 hours per week for a full time apprentice) during their apprenticeship; and
- the end-point assessment - after the practical period, the apprentice will be assessed to ensure they have met the Standard and can be awarded their qualification.
Separately, apprentices will be provided with a Commitment Statement in which the apprentice, employer and training provider commit to certain minimum requirements during the apprenticeship.
Whilst these are the minimum requirements, we recommend adding other apprentice-specific wording, such as obligations on the apprentice to attend all training provided and the ability to dismiss if they are not achieving the Standard as expected.
Where an organisation receives levy funding directly from the Education and Skills Funding Agency (ESFA), it must submit an Individualised Learner Record.
When the Apprenticeship Agreement was introduced by the ASCLA in 2009, it provided for a statutory form of apprenticeship for both England and Wales. The primary reason for its introduction was to encourage the use of apprenticeships and to tackle the issue of enhanced protections under the common law apprenticeship (see Scottish requirements for an explanation of common law apprenticeships).
Amendments to the ASCLA mean that, unless already entered into, Apprenticeship Agreements can no longer be used in England. They do, however, continue to be used in Wales.
Individuals under an Apprenticeship Agreement work within an apprenticeship “Framework” which is primarily qualification-focused, as opposed to Standards which are more skills-focused.
Apprenticeship Agreements must be in a prescribed form and include a statement of the trade or occupation for which the apprentice is being trained under the applicable Framework. Again, we also recommend adding other apprentice-specific wording, such as obligations on the apprentice to attend all training provided and the ability to dismiss if they are not achieving the Framework as expected.
Apprenticeship Agreements are usually for a fixed term and the normal requirement to provide a statement of employment particulars under section 1 of the Employment Rights Act 1996 applies.
Common law apprenticeships
The ASCLA does not apply to apprenticeships in Scotland. This means that all apprenticeships in Scotland are common law apprenticeships.
This is the oldest form of apprenticeship and there is no prescribed-form apprenticeship contract for this category, save that they are required to be provided with a statement of employment particulars under section 1 of the Employment Right Act 1996.
The key issue to bear in mind is that common law apprentices have enhanced protection against dismissal. Unlike with statutory apprentices, employers have much less scope for terminating a common law apprentice before the end of the fixed term, even if there are serious performance or conduct concerns.
Essentially, there need to be problems that render the apprentice “unteachable”. Redundancy can only be a valid reason for dismissal of a common law apprentice in cases of business closure or a fundamental change to the business.
Ending a common law apprenticeship without proper grounds to do so could result in breach of contract claims for damages covering the remainder of the apprenticeship and even future career loss. For example, in a case in 2018, the claimant whose apprenticeship was terminated after less than two months was awarded damages for the remaining 4 years of his apprenticeship plus future losses to reflect the lower salary he would now command.
As a result of these enhanced rights, employers should where possible ensure that the statutory requirements are followed to avoid inadvertently creating a common law apprenticeship.
There are many types of apprenticeships in Northern Ireland and like Scotland these are by and large common law apprenticeships.
Whilst there are specific apprenticeship programmes (such as Legal Apprenticeships for the legal profession) which may have specific contracts, in general there are two apprenticeship programmes funded by the Department for the Economy:
- ApprenticeshipsNI - Level 2 and 3 - available to individuals 16 and over
- Higher Level Apprenticeships (HLAs) - Level 4 to Level 7
Apprenticeships are available in a wide range of occupational areas and ApprenticeshipNI programmes are based on Frameworks to cover the training in that occupational area and Higher Level Apprenticeships have specified qualifications.
There is no prescribed contract to enter into with the apprentice but apprentices are employees and therefore there is a requirement to issue a contract in accordance with Article 33 of the Employment Rights (Northern Ireland) Order 1996. Typically, these will be written to be fixed term for the duration of the training element of the contract.
As in Scotland, employers have much less scope for terminating a common law apprentice before the end of the fixed term, even if there are serious performance or conduct concerns, including higher protection in relation to redundancies.
Ending a common law apprenticeship without proper grounds to do so could result in breach of contract claims for damages covering the remainder of the apprenticeship and even future career loss.
- Which type of apprenticeship? While they are rarely chosen in England or Wales due to the statutory framework that exists for more modern apprenticeships, there are still apprenticeships which do not fall within the statutory regime and which may be deemed a common law apprenticeship. It is therefore important to check with your provider as to whether the chosen apprenticeship falls within the statutory regime, to ensure you are using the right contractual documentation with the relevant provisions.
- Does the contract reflect the relevant statutory scheme? If your apprentice is employed under an Apprenticeship Agreement or Approved English Apprenticeship, then the contractual documentation will need to comply with statutory requirements. Failure to do so could result in the agreement being construed as a common law apprenticeship which as detailed above, severely restricts an employer’s ability to terminate a common law apprentice before the end of the fixed term. It can also affect the ability to access levy funding.
- Can approved English apprenticeships be undertaken by apprentices who are not resident in England? The position regarding any residence requirement is not entirely clear. There is no requirement under the ASCLA for an apprentice to be resident in England in order to enter into an approved English apprenticeship, however guidance suggests otherwise. For example, the government's guidance states that, to start an apprenticeship, an individual will need to be living in England. This means that difficulties arise when the country in which the hiring company is headquartered is different from the working location of the apprentice, for example, if the apprentice works from home or works from another company office. This is because the contract is changed based on funding, the type of apprenticeship and the laws of the country in which the apprentice is based. In such scenario, an assessment of the facts is required and often specialist advice is needed to determine the contractual position.
If you hire apprentices (or are thinking of doing so) it is therefore essential to ensure your contracts/agreement reflect statutory and/or jurisdictional requirements. We have a specialist apprenticeship team who are able to assist with any queries, and if you operate across the UK, we can produce a suite of documents compliant across all jurisdictions.