Apprentices in Scotland – Employment Protection
Apprentices in Scotland enjoy significant employment protection as compared with other categories of employees. Apprenticeships are regarded as work-based training programmes including training by experienced employees and hands-on work. An apprenticeship is a fixed-term contract, either of a specified duration, or it lasts until a certain qualification has been obtained. Apprentices are entitled to a minimum hourly wage and normally split their time between college and the workplace.
It is important that employers understand that the courts take the view that training, not work, is the primary purpose of an apprenticeship contract.
An apprentice has enhanced rights especially in relation to termination of employment. This has been made clear in case law over the years, most recently in Revenue & Customs v Jones 2014 UKEAT where it was stated “the ordinary law as to dismissal does not apply to contracts of apprenticeship. It can be brought to an end by some fundamental frustrating event or repudiatory act but not by conduct that would ordinarily justify dismissal. It would appear that the frustrating, repudiatory act must have the effect of fundamentally undermining the ability to teach the apprentice”.
Therefore, terminating a contract of apprenticeship is difficult and can be costly for an employer. It is because the primary purpose of the contract of apprenticeship is training that gives the apprenticeship that increased legal protection. Therefore, there are very limited grounds upon which an employer can lawfully terminate a contract of apprenticeship before the fixed term expires. The apprentice’s conduct must be so bad that it becomes impossible for the employer to teach them their trade. This is a test that has been applied by Tribunals when considering cases relating to early termination of a contract of apprenticeship and it is a very high burden of proof for the employer to meet. It also makes it very important that if the employer thinks the apprentice is not performing as well as they should be, then the onus rests squarely on the employer to meet with the apprentice and raise their concerns about performance and any lack of process and should also set the apprentice targets for improvement. The existence of that evidence is something that will be taken into consideration by Tribunals in looking at whether the apprentice is “unteachable”. Employers should therefore regularly meet with their apprentices to make sure that they are being trained and monitored correctly and that they are reaching the expected standards.
What about redundancy? It’s not enough to establish that due to for example, covid or loss of a customer that there is a lack of work for the apprentice and that they are to be made redundant. Again this links back to the primary function of the apprenticeship contract being training. The employer would need to demonstrate it had become impossible to continue the apprentice’s training or that the business is going to close before they could safely make an apprentice redundant.
Remember also that an apprentice who is terminated lawfully can also claim unfair dismissal if they have 2 years’ service with the company. If they don’t have 2 years’ service and the company is unable to demonstrate “unteachable” then the apprentice can claim breach of contract with potential for significant damages based on loss of future earning prospects.
The position in England and Wales is different, as it is usually governed by statute provided certain conditions are met. In Scotland, common law applies as interpreted by case law.
