Use of the term Apprentice on contracts

Common law contracts of apprenticeship are of a “special character” and there are some key features which mark them out as different from normal employment contracts. These are:
• The appointment will usually be for a fixed term, reflecting the length of the apprenticeship (usually between one to four years) or until a level of qualification is reached.
• Training is the primary purpose, and is usually fully or partially government funded.
• Apprentices in Scotland have enhanced protection against termination.

In Scotland, apprentices have enhanced rights protecting them against early termination – the reason being that the essential purpose is training, the execution of work for the employer being secondary. These are day one rights with no requirement for qualifying service. The standard of misconduct required before dismissal can take place should be higher for an apprentice than that for an ordinary employee and there are limited grounds that may be used to dismiss an apprentice for gross misconduct:-
• Their behaviour or actions are such that they become unteachable;
• Their behaviour is such that it demonstrates serious disobedience or neglect of duties; or
• They cease to be entitled to work in the United Kingdom.

In each case it will be a question of fact and degree as to whether the behaviour is such as to justify summary dismissal. However, as the damages payable for early and unlawful termination of an apprenticeship contract can be significant, taking into account the remainder of the term of the apprenticeship, as well as loss of training and impact on future earnings, employers will require to ensure that a fair process has been followed and have clear evidence supporting any decision to dismiss. I recommend members seek legal advice as needed in such cases, and we will be happy to assist.

However, if a contract describes the working arrangement as an apprenticeship but the salient features of an apprenticeship are absent, it is open to the tribunal or court to find that a different arrangement applies, for example an employee employed under an ordinary contract of employment. To minimise the risk of any dispute, employers who are not employing a staff member under an apprenticeship scheme may prefer to use the term 'Trainee'.

Please contact Lindsay Solicitors 0131 656 5643 to discuss the above before issuing a contract of employment.