Monthly Archives: May 2015

Apprenticeships – Learn Before They Earn

Apprenticeships - Learn Before You EarnSUMMARY: The rise in the number of apprentices shows what a great asset they can be but what do you need to learn before your apprentice starts to earn?

Background

Apprenticeships are paid jobs that incorporate on-and off-the-job training leading to nationally recognised qualifications. Apprentices earn as they learn and gain practical skills in the workplace.

Since 2009/2010, the number of apprenticeships has generally been increasing and in the academic year 2013-2014 there were 440,400 apprenticeship starts.

These figures are unlikely to change as the government views apprenticeships as playing an important role in the long term development of the UK’s workforce as well as contributing to enhanced productivity.

Status

From a legal perspective apprentices are employees and as such have the same rights as any other employee.  However, in some cases additional rights and obligations may arise and it is important that organisations understand what these are.

Regulating the apprenticeship

It is essential that an appropriate written agreement is in place with an apprentice to govern the working and training arrangements.

There are two main types of agreement:

  • a modern “apprenticeship agreement”; and
  • a traditional “contract of apprentice”.

There are important differences between these types of agreement, which will also determine what rights the apprentice has, which we explain below.

Apprenticeship agreements

This is the more modern type of agreement and the one that is most often used today.

For an agreement to constitute an apprenticeship agreement, currently it must.

  • be in writing;
  • contain the basic terms of employment required to be given to employees;
  • include a statement of the skill, trade or occupation for which the apprentice is being trained under the relevant apprenticeship framework;
  • state that it is governed by the law of England and Wales;
  • state that it is entered into in connection with a qualifying apprenticeship framework,

and the apprentice must undertake to work for the employer.

Reform of apprenticeship agreements

From 26 May 2015, apprenticeship agreements will be replaced with “approved English apprenticeships” in England.

An approved English apprenticeship will take place under an “approved English apprenticeship agreement” or will be an “alternative English apprenticeship” and, in each case, must satisfy certain conditions which will be specified in regulations. It must:

1)    provide for an individual to work as an apprentice in a sector for which the Secretary of State has published an approved apprenticeship standard; and

2)    provide for the apprentice to receive training in order to assist the apprentice to achieve the approved apprenticeship standard in the work done under the agreement.

It must also satisfy any other conditions set by the Secretary of State. Without exception, all new apprenticeships must last for at least 12 months.

Advantages of apprenticeship agreements

As is currently the case with apprenticeship agreements, approved English apprenticeships will be contracts of service.  This means that:

  • apprentices under approved English apprenticeships/apprenticeship agreements can be dismissed in the same way as ordinary employees; and
  • employers can effectively performance manage under-performing apprentices under these agreements as they would any employee in the business.

However, if the relevant criteria for an approved English apprenticeship (or current apprenticeship agreement) are not met, the individual may be engaged under a common law contract of apprenticeship.  This can present an employer with a number of legal issues, which we consider below.

Contracts of apprenticeship

This is the traditional type of agreement, often called the common law contract of apprenticeship, and gives the apprentice greater rights.  A common law contract of apprenticeship is different to an apprenticeship agreement or approved English apprenticeship:

  • It does not have to be in writing.

This means that if employers do not have a written agreement with an apprentice, it is possible they have inadvertently created a common law contract of apprenticeship.

  • It is usually for a fixed term and employers have only a limited right of dismissal before the end of the term.

This means that it is more difficult to dismiss an individual engaged under a common law contract of apprenticeship than a normal employee or an apprentice engaged under an apprenticeship agreement.

If it can be avoided, it is usually advisable for employers not to engage individuals under this type of apprenticeship.

Problems with a contract of apprenticeship

Due to the nature of a contract of apprenticeship employers can often be faced with problems where for some reason they are considering dismissing the apprentice. For example:

  • Misconduct in the normal employment context will not be sufficient to justify dismissal, unless the apprentice’s actions are so extreme that the apprentice is effectively unteachable.
  • Unless there is a closure of the business or the employer’s business undergoes a fundamental change in its character an apprentice cannot be dismissed by reason of redundancy.

There can therefore be serious consequences if the contract is not lawfully terminated as the apprentice would be entitled to damages for loss of earnings and training for the remainder of the term of the apprenticeship; damages would take into account any impact on future earnings.

This means that the damages which could be claimed by an apprentice whose common law contract of apprenticeship is terminated could be significantly greater than any compensation claimed by an apprentice under an apprenticeship agreement.

What should employers do?

Before recruiting an apprentice, employers should consider whether they can provide the apprentice with work under an apprenticeship agreement or approved English apprenticeship. In advance of the individual commencing their apprenticeship, the employer should provide the relevant written agreement to the apprentice and ensure that it has been returned signed before the start date.

If employers already engage certain individuals as apprentices, they should check what type of agreement they are engaged under – we can advise employers on this in the case of uncertainty.

Contact Details

For more details about apprenticeships please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Discount the Importance of an Appeal Hearing at Your Peril?

Appeals ProcedureSUMMARY: Whilst many employers’ primary aim is to get the investigation and disciplinary hearing out of the way, the importance of the appeal stage should not be underestimated.

Why offer a right of appeal?

The right of appeal is a fundamental step in any disciplinary process. Not only is this right a matter of good HR practice, the ACAS Code of Practice on Disciplinary and Grievance Procedures confirms that an employee should be allowed to appeal any formal decision (ranging from a warning to a dismissal) where they consider it is wrong or unjust.

Whilst not common, employees may have a contractual right to an appeal and, if so, the contract of employment will dictate the process that must be followed. Employers are therefore advised to check the contractual status of the process before deciding how to proceed. If in doubt, it may be preferable to obtain legal advice before starting the process to limit any argument by a disgruntled employee that there has been a breach of contract.

The consequences of not offering a right of appeal

A failure to offer a right of appeal may provide an employee with the basis for a claim. For example:

  • an employee who has been issued with a warning could resign and claim constructive unfair dismissal on the basis there has been a breach of trust and confidence; or
  • any dismissal in the absence of a right of appeal could be an unfair dismissal.

Although there is no statutory obligation to follow the ACAS Code, breaches of the Code can result in an uplift of up to 25% of any compensatory award made by a tribunal.

It is therefore advisable that any disciplinary procedure should include an appeal stage.

A fair appeal process

In order to avoid the mischief that can follow where the right of appeal has not been properly adhered to, employers should bear in mind the following top tips for ensuring a fair appeal process.

1. Arrangements for the appeal

Employers need to provide the employee with the opportunity to appeal and have that appeal heard at a hearing. In this regard, the following arrangements should be put in place:

  • Check if there are any contractual appeal requirements that will need to be followed.
  • The employee should be advised in writing at the end of any disciplinary process that should they want to appeal, they should set the grounds of appeal out in writing.  A general rule of thumb is to allow the employee at least 5 working days to submit their appeal as recommended by the non-statutory ACAS guide.
  • If an appeal is received it should be heard without unreasonable delay.
  • The appeal should be dealt with impartially – see below.
  • Employees must be given the right to be accompanied at appeal hearings by a work colleague or a trade union representative.
  • The manager conducting the appeal should be provided with all the evidence obtained during the investigation as well as the notes from the disciplinary meeting.
  • The appeal outcome should be confirmed in writing as soon as possible after the appeal.

Whilst the process appears to be relatively straightforward, there are some additional matters that an employer may need to consider, which are dealt with below.

2. Reviews Vs Re-Hearings

Employees should be asked to state their full grounds for appealing so that a decision can be taken as to whether the appeal will be either:

  • a review of the original decision; or
  • a full re-hearing of the case.

The grounds of appeal will dictate the format of the appeal and the employee should be advised of this in advance of the hearing. In situations where the earlier stages of the disciplinary procedure were flawed or the employee’s ability to continue in their chosen profession is at risk, a re-hearing is likely to be appropriate.

3. The need for impartiality

Wherever possible, it is advisable for the person chairing the appeal hearing to have had no prior involvement with any stage of the procedure leading up to the appeal stage. Ideally, this person should be someone more senior than the person responsible for making the decision to dismiss or imposing the disciplinary penalty. This will avoid allegations that the person responsible for the appeal was biased or was simply supporting their manager’s decision, instead of properly considering the decision.

It is also important that the appeal chair does not confer with the initial decision maker prior to the appeal hearing as this could lead to a biased view, even before they have met with the employee.

Where there has been a failure to provide an impartial appeals process, a dismissal which is upheld could be found to be unfair. Likewise, where the employee remains in employment there may be a breach of the implied terms of trust and confidence which may form the basis of a constructive dismissal claim.

Employers when planning any disciplinary process should be mindful of the appeal stage and give consideration as to who would be available to chair an appeal hearing, ensuring that whomever they choose is going to be sufficiently impartial to deflect any argument of bias. In some instances, this may mean bringing in an independent chair from outside the organisation. Ultimately, the identity of the chair should depend upon the nature of the complaint and the size of the administrative resources of the organisation.

4. What to do if new evidence is submitted

Irrespective of whether the hearing is taking the form of a review or a re-hearing, when new evidence comes to light, the employee must be given an opportunity to comment on it. In certain circumstances new evidence may also be used to justify the upholding of a dismissal on appeal even if the chair is of the view that the evidence relied on at the original dismissal hearing was not sufficient to justify dismissal at that earlier stage – this is provided that the evidence relates to the original reason for dismissal and not a different reason.

Equally, employees should be given adequate opportunity to present their case at the appeal stage. Any new information submitted by the employee at the appeal should therefore be considered by the chair.

5. Varying sanctions on appeal

There are a variety of sanctions available to an employer. For example:

  • Dismiss the appeal and uphold the original sanction.
  • Overturn the original sanction.
  • Substitute a different sanction.

If an appeal process is to be a fair, an employer should be open to all three possible outcomes.

Employers can impose lesser sanctions on appeal when they consider it is appropriate to do so in the light of the matters discussed at the appeal hearing. However, ordinarily, it is inadvisable for employers to increase sanctions on appeal. The ACAS Code of Practice on Disciplinary and Grievance Procedures warns against increasing sanctions on appeal and this advice is supported by case law.

Contact Details

For more details about disciplinary procedures including the handling of the appeal stage, please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.