How far can you go when dealing with problem apprentices?Posted in : Seamus Says - Employment Law Discussion on 18 October 2017
Q. How far can you go when dealing with problem apprentices?
Seamus: Okay. Well, I suppose we need to be careful, and again, cautionary whenever we're dealing with apprentices, in general, it tends to be in my experience that apprentices are employed under a specific contract. It might not be the normal, usual contract of employment that the business has. So, it could be a particular contract. Often, if there is a regulator or a guardian, as they're called, involved, they will have provided the appraisement contract for it to be adopted by the business.
So, it's important that that contract is initially looked at and considered it's right for the business itself. The agreement tends to be that the employer is agreeing to take the apprentice on and train them up. You'll usually find that's for a trade or a profession. So, for instance, myself back in the day, a long time ago, I had an apprentice contract. The law society would have provided that to the office here and it would have been looked at and then eventually all the parties would have signed up.
Generally, there's the three people that are involved in those types of apprentice contracts. Then once the apprentice is in, it will have to be explained to them what the general expectations will be for them in terms of their performance. You'll see in respect to some of these professional apprenticeships that there will be an expectation that they attend if they're going to classes or if there's examinations that they're required to pass the examination and things like that. There could also be general performance issues and it can be hard to monitor whenever you maybe have the apprentice in only a couple days a week or they're in for a few weeks and out of the business for a number of weeks.
It's important that there's proper reviews done and there's a joint process between the business and the employee itself. Where there are issues that arise, you do need to be careful in terms of dealing with those issues fairly, as you would for any other employee. The risk for any other apprentice would be if you were to unfairly dismiss or terminate the contract, that the employee would have some come back on to you for breach of contract.
There have been cases in the past whereby the apprentice has sought loss of earnings because the deal would be at the end that you'd be qualified in your trade or your profession and able to get work then after that.
Scott: You're not guaranteed a job with the employer?
Seamus: No, absolutely. It's clear as well that at the end of the apprenticeship, that's what the contract period is for. That's what the purpose of the contract is. Often if the apprentice is good and the business has invested their time and their money into them, they may have a job for them. Sometimes what they'll say is we do have a job coming up but it's going to external trawl and we're going to recruit into that as we normally would. So, it depends on the nature of the relationship there, but there wouldn't be an expectation from the apprentice that they're automatically entitled to the job at the end of the completion of their apprenticeship.
Scott: There would be an expectation that if I qualify as an apprentice, I will be able to earn more and therefore potentially sue the employer if they terminate my contract incorrectly, not just for the period of the remaining contract, but potentially for future earnings because I can't earn as much unless I'm a fully qualified person.
Seamus: Yes, and the case law has shown that where it is unfairly . . . where the contract is unfairly breached by the employer and even if we're looking at situations for redundancies and things like that when it comes to apprentices, you need to tread very carefully and you need to be going back to the contract and looking to see what it says. Bottom line is that the apprentice really shouldn't be treated any less favourably or fairly than a normal employee, but you just have to tread a bit more cautiously with your apprentice, in particular, your contract that you have.
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