As we reach the last weeks of 2023, our employment team have been looking back over the year and picking out their employment law highlights. Whether a personal success, an interesting case that was reported or a focus on new legislation, our blogs over the next few weeks will focus on the selected issues and offer you our 3 takeaway tips in how best to approach these situations should they arise in your workplace.
First up, Annabel Scott, a 2nd year trainee in our Glasgow office, looks at the difficulties employers can encounter when seeking to terminate an apprenticeship.
Apprenticeship contracts can be a tricky area for employers. There is a common law aspect to the law governing apprenticeship contracts that makes it distinct from ‘ordinary’ employment contracts. In essence, the law states that the primary purpose of a contract of apprenticeship is for the apprentice to receive training, with employment being of secondary importance. The common law considers contracts of apprenticeship to be of a ‘special’ nature which means that dismissing an apprentice or trainee before the end of their apprenticeship is very difficult.
Who is an Apprentice?
There are three essential criteria for a contract of apprenticeship:
- Payment to the apprentice
- A training programme to allow them to acquire valuable skills (or a qualification)
- Ability to provide employment opportunities in the labour market following the successful completion of the training
This definition can capture people working under apprenticeship, traineeship, and graduate contracts, however, the way the contract is labelled is not determinative. So just because you don’t call your employee an apprentice, doesn’t mean that the nature of their role makes them one.
What makes dismissal different?
Employers who terminate an apprenticeship contract early, risk the apprentice being able to claim elevated damages. The apprentice can claim their wages for the remainder of the apprenticeship, along with holiday pay, notice pay, and any other contractual sums they may be due. However, it is open to the apprentice to also claim for any loss of future earnings they will suffer as a result of them not attaining the qualification they would have on successful completion of the apprenticeship. It’s therefore worth employers taking their time and conducting the dismissal appropriately rather than risking a claim for breach of contract.
Poorly performing apprentices
Unlike with an ordinary employee, the threshold for dismissing an apprentice for performance related issues is very high. The employer has to be able to show that the apprentice’s performance is so poor that they are in effect untrainable and, therefore, they (the employer) are unable, despite their best efforts, to fulfil their obligations under the contract for apprenticeship. The evidentiary burden for this, as you can imagine, is extremely difficult to reach. Judges are often sympathetic to an apprentice requiring additional support or training as the law deems that, and not any benefit the employer may receive from the work being completed by the apprentice, as the true purpose of the contract.
If dismissing an apprentice on the basis of their poor performance then clear and detailed records will need to be kept which can be used to evidence the ‘untrainability’ of the apprentice, the support they received and the efforts made to bring them up to the standard required. Things like failing tests that are required to attain the overall qualification and explicit examples of where performance fell below the expected standard can be used as evidence to show that dismissal was lawful. However, it is unlikely that any one example of poor performance or a failed test will be sufficient to justify termination. A further element is that there should be regular feedback and communication with the apprentice regarding their performance and, crucially, that they were warned their dismissal was being contemplated prior to the decision being made.
Dismissal on the basis of conduct
Similarly, if dismissal on the basis of misconduct is being considered, the evidential burden in order to show that the conduct was properly investigated is high.
It is rare, therefore, to find cases where an employer is found to have lawfully terminated an apprenticeship when a claim is brought for breach of contract. One example of where an employer was able to justify dismissal arose in Siu v Sterling Lawyers Ltd. In this case, the tribunal considered a range of claims by the Claimant, a trainee solicitor in a London law firm.
The employer alleged a range of conduct issues but were criticised by the tribunal for being unable to evidence any disciplinary process or investigation into these matters. However, one specific act of misconduct was deemed to be sufficient to justify the trainee’s termination. The Claimant had sent over 100 confidential and sensitive emails from her work email to her personal email address. The Tribunal considered that this, objectively, amounted to a fundamental breach of her contract justifying summary dismissal.
The tribunal found that this act was repudiatory in nature as it breached the confidentiality requirements in her Training Contract and the duties of trust and confidence which are integral to the employment relationship.
It should be noted that had it not been for this act of gross misconduct the decision could have been very different. The judgement states that there was insufficient evidence of the other instances of alleged misconduct to satisfy the required standard of proof, further emphasising the evidentiary burden on employers when seeking to lawfully terminate the contract of an apprentice.
- The primary aim of a contract of apprenticeship in the eyes of the law is to train the apprentice (not any benefit the employer may get from the work they carry out). Make sure the people who manage apprenticeships in your business are aware of this.
- The evidentiary burden to show that an employer lawfully terminated an apprentice on the basis of performance or conduct is extremely high – keep detailed records! This should include:
- Notes of meetings to discuss performance/ conduct issues;
- Records of the feedback given to the apprentice about asserted under performance/ their behaviour and conduct; and
- Examples of the steps taken by the employer to provide feedback and support to the apprentice.
- Elevated damages could be awarded if an employer is found to have unlawfully terminated an apprenticeship contract, so this need to be borne in mind if things reach the stage that the apprenticeship is to be terminated.