Ten top tips for employing an apprentice

1. Get the type of apprenticeship agreement right

For an employer to be eligible for Apprenticeship Levy funding in England and Wales, there must be a valid Apprenticeship Agreement in place between the apprentice and the employer. This is an agreement in a prescribed form that covers specific things, including the trade or occupation for which the apprentice is being trained.

The Apprenticeship Agreement forms part of the employment contract between the parties. The provisions can be included within the employment contract or can be set out in an additional document.

If the requirements for an Apprenticeship Agreement are not met in England and Wales, the arrangement will not be eligible for Levy funding. It also risks falling into a category of contract known as an old-style “contract of apprenticeship”.

Apprentices employed under this contract of apprenticeship (“common law” apprentices) have enhanced protection against dismissal. For example, a dismissal for performance reasons will only be found to be fair if the employer can show that the apprentice is “unteachable”. A redundancy dismissal is only possible in limited circumstances, such as where an entire company is closing down. A dismissal prior to completion of the apprenticeship can also allow the apprentice to make a breach of contract claim for “career loss” damages.

Getting the type of apprenticeship agreement right is therefore of paramount important.

Note that in both Scotland and Northern Ireland, apprentices are generally common law apprentices which means they have this enhanced dismissal protection.

2. Get the contract right

Even where the requirements for the Apprenticeship Agreement are met (either within the contract or in a separate document), we would recommend including other useful provisions relevant to an apprenticeship which may not normally appear in your standard template.

For example, you may wish to include provisions relating to attendance at off-the-job training, expected academic milestones, and clear wording regarding what happens at the end of the apprenticeship (see tip 10 below).

3. Recruit carefully

Where there is a valid Apprenticeship Agreement in place, apprentices in England and Wales have the same rights as other employees, meaning they can be recruited and dismissed in the same way.

As mentioned above, the rules on apprenticeships are different in Scotland and Northern Ireland, and apprentices have enhanced dismissal rights. Even serious misconduct, which could be considered gross misconduct for an employee, may not be enough to dismiss a common law apprentice. Employees hiring apprentices in Scotland and Northern Ireland should ensure they have robust recruitment processes and, where possible, obtain references on potential apprentices to ensure possible risks of early termination are reduced.

It is important to remember that recruitment should be open to all suitable candidates. In particular, it should not be limited to younger workers as this is likely to be age discrimination. It is also possible to use apprenticeships as part of a “returnership” programme for older workers – see our recent article on how employers an support older employees in reskilling and returning to the workplace for more information on the risks and benefits of this option.

It is also important to comply with all immigration requirements: the Apprenticeship Funding Rules contain specific provisions relating to which immigration statuses are eligible for apprenticeship funding. An employer must carry out right to work checks in the same way as they would for an employee. Contracts of apprenticeship are specifically covered under the applicable civil penalty regime for failures to comply with the rules.

4. Consider providing financial assistance upfront

This will often be an apprentice’s first experience of venturing into a working environment outside full-time education. They may also be moving to a new location, such as an unfamiliar new city. Employers may wish to consider providing help and support to new apprentices to help with the transition.

Areas to think about include: to what extent the apprentices are able to manage financially until receiving their first pay; whether they have the ability or resources to find suitable accommodation; and how they will travel to the new location. These issues are likely to be especially tricky for those from less privileged socio-economic backgrounds, and employers may wish to consider bursaries or other schemes to help overcome these hurdles.

5. Put internal mentoring structures in place

Apprentices entering the workforce for the first time will need consistent help and support.

A good way to provide this is to put in place a designated mentor or “buddy” for each apprentice as an alternative source of support outside of the usual management set-up. This will assist with their integration in the workforce and provide an important first point of contact for any problems they are experiencing.

The apprentice workforce is more likely to be young (although not necessarily so, as flagged in tip 3 above in relation to recruitment). It can be very beneficial to ensure there is good support network at the employer right from the outset, where they feel comfortable to discuss issues outside the scope of the role.

6. Make sure performance expectations are set out clearly from the start

Clear expectations are important for any employee, but they are especially important for new apprentices. Apprentices will often have less understanding about what is expected from a new recruit – both generally with regards to working in a professional environment, and individually in relation to their role progression.

It is essential to provide clear guidance in relation to the tasks the apprentice will be carrying out, how their work will be reviewed, and also how the office environment functions. For example, expectations in relation to communication, attendance, organisation skills and general etiquette.

However, performance in the workplace is only one half of the apprenticeship. Of equal importance is their ability to pass the academic requirements of the course. Work with your training provider to set out clear expectations and goals, with a detailed timetable setting out by when certain objectives need to be achieved in order for the apprentice to succeed. Communication with the training provider is also key: consistent failure to attend training, pass modules or reach academic milestones may be a sign that the apprentice requires more support or that they are not suited to the course. It will be the employer’s responsibility to put in place any appropriate performance management processes (see tip 8 below).

Where an apprentice is engaged under an Apprenticeship Agreement, meaning that normal employment rules apply, it is advisable to include some key performance requirements in the contract. For example, by limiting the permitted number of attempts to pass academic modules, or making repeated not-attendance at off-the-job training an example of gross misconduct.

7. Don’t put your least experienced manager in charge of apprentices

It is tempting for organisations to consider that apprentices can be managed by one of their junior and less experienced managers, who may be closer to them in terms of recent experience of being a new joiner.

However, this can be a mistake. Apprentices are actually likely to need additional help and support through their apprenticeship, and with the combined issues of academic and work performance to consider and manage, a skilled manager will be far better suited to the role. Failure to properly manage apprentices can lead to a high drop-out rate, and a higher risk of disputes – for example, because performance issues have not been managed consistently.

8. Actively performance manage through the apprenticeship

Making sure that your apprentice receives plenty of feedback is essential. Apprenticeships are about learning and training, so having regular catchups and monitoring provides the opportunity to show apprentices what they are doing well and what they need to improve on to achieve their goals. It’s also a good way to check if they are struggling with anything and might need additional support.

Consistent management is the only way to ensure that your apprentice is heading in the right direction. If insufficient supervision is given throughout the course of the apprenticeship, the employer and the apprentice may realise too late that the apprentice is not demonstrating the skills needed to successfully complete the programme. From a pastoral point of view, giving your apprentice lots of feedback will also provide them with reassurance that they are on track and build up their confidence.

Conversely, as with any other employee, where the apprentice is not performing to the required standard, active performance management is the only way to ensure improvement. It is also the fair way to determine that the apprentice is not suited to the programme and potentially bring their employment to an end (where this can be done safely – see tip 9 below).

Feedback can take place as part of regular reviews or through immediate informal feedback. For example, a weekly informal check-in to catch up on the week, or giving the apprentice an immediate positive response on a piece of work if they did well. As for all employees, it is important to keep a record of performance feedback, so that you can demonstrate how the apprentice has performed throughout the programme.

9. If you need to dismiss an apprentice before completion, be cautious

The position of an employer regarding dismissal varies depending on the type of apprenticeship.

Common law apprentices have no statutory framework and have enhanced protection against dismissal. The only way an employer can end an apprenticeship before the end of a fixed term is if the apprentice is deemed “unteachable”. If a common law apprenticeship is ended before the end of a fixed term without proper grounds to do so, the apprentice might be able to claim for damages as a result of breach of contract. Employers need to be sure that if they are dismissing an apprentice, they have evidence to prove that the individual was unteachable. As mentioned in tip 1 above, this applies to apprentices working in Scotland and Northern Ireland, and may also apply in England and Wales if there is no valid Apprenticeship Agreement.

Apprentices under either of the statutory apprenticeship schemes in England and Wales have “employee” status. They acquire the same rights as other employees, including the right not to be discriminated against and (after two years’ service) the right not to be unfairly dismissed. Unlike common law apprenticeships, they do not have enhanced dismissal protections, meaning they can be dismissed on the basis of a fair reason after following a fair process.

However, in our view, when assessing whether or not a proposed dismissal of an apprentice will be fair and reasonable, employers should consider some additional points. For example, is the apprentice being judged by reference to an appropriate standard of conduct or performance, considering their status as someone “in training”? If the apprentice is succeeding on the academic aspects of the course, is there any flexibility or additional support which could be given relating to the “on the job” training? Where an apprentice is close to completing the apprenticeship, is there any way of allowing completion to avoid the apprentice losing the opportunity to gain their qualification? A dismissal close to the end of the apprenticeship is more likely to be unfair because of the consequences for the apprentice.

10. Be clear about what happens at the end of the apprenticeship

Of course, the aim of the apprenticeship is that your apprentice will successfully complete their course and go on to find permanent employment in their chosen field.

We would recommend ensuring that there is clear wording in the apprenticeship agreement regarding whether or not employment with the employer is likely to continue beyond the apprenticeship, such as by way of an offer of a permanent position, or will automatically terminate when the apprenticeship is complete. If the latter, this is likely to be a “some other substantial reason” dismissal for the purposes of unfair dismissal, rather than a redundancy. This is on the basis that the role of “apprentice” is likely to still exist, but the employee is no longer eligible for that role because they have completed their own apprenticeship.

For more information please contact our Apprentices team: Abi Frederick, Lee Nair, Saffron O’Gorman.