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Friday, 2 November 2012

Friday Guest Blog

By Shiva Shadi – Partner in the Employment Law Department at Davis Blank Furniss

We’ve had a number of enquiries lately from firms thinking about redundancies due to declining orders, but are confused as to whether apprentices should be treated any differently to employees.

Employers have certain additional responsibilities for an apprentice employed under a “contract of apprenticeship” as opposed to an apprentice employed under an “apprenticeship agreement”.

Apprenticeship agreements can be treated by an employer in the same way as an ordinary contract of employment and they do not benefit from enhanced rights when it comes to termination - although you must ensure that you comply with the normal standards set out in employee legislation. However, in order to fall into this category such an agreement must comply with the conditions set out in the ASCLA 2009.

If the primary purpose of a contract of apprenticeship is training then any work that is carried out by the apprentices for you is secondary. As a result, you cannot dismiss an apprentice on the same grounds that you could an ordinary employee. Current case law confirms that you cannot terminate an apprentice’s contract on the grounds of redundancy unless the company is closing down or there is a fundamental change in the business. Such apprentices should not be included in a redundancy consultation procedure as you have set out.

Apprentices employed under contracts of apprenticeship have enhanced protection from early termination of their contract. In such circumstances, a tribunal may award them damages for loss of earnings and training for the remainder of the term of the contract and for also loss of future career prospects. Before deciding whether an apprentice could be considered for redundancy, it is crucial to establish the exact terms of their agreement. If there is a dispute as to which category of apprenticeship an individual falls into then it may be prudent to take further advice before further steps are taken.

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