Can an apprentice be dismissed before they complete their apprenticeship in NI?

Posted in : Seamus Says - Employment Law Discussion on 2 February 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Q: Under what circumstances can you lawfully dismiss an apprentice prior to the completion of their apprenticeship in Northern Ireland? I read somewhere that this can only be done in cases of extremely serious gross misconduct. Where might employers find detailed information on apprenticeship legislation or guidelines in Northern Ireland?

So, Seamus, the first question we had from last week, actually, is about apprenticeships. The question we have here is, ‘Under what circumstances can you lawfully dismiss an apprentice prior to the completion of their apprenticeship in Northern Ireland? I read somewhere that this can only be done in cases of extremely serious gross misconduct. Where might employers find detailed information on apprenticeship legislation or guidelines in Northern Ireland?’

Seamus: Good morning, Scott. Apprenticeships has always been a thorny issue here in Northern Ireland. It’s been made slightly more difficult on the basis that there was an amendment made to legislation in 2012 in England and Wales. There was the application of the apprenticeship agreement regulations, which changed the position very much for how contracts are perceived for apprentices in England. The difficulty is that we’re stuck with our status quo position here. So, the person with the question, the query here is right. It is very difficult in terms of dismissing or treating an apprentice in the same way that you would treat a normal employee.

The basic position here remains that the contract of apprenticeship is stated to be for the duration of the training period. So often, you’ll see these contracts that will be formally two to three years, sometimes up to four years. It can be longer than that. The contract that’s provided to the apprentice will specify the term at that point. In essence, the law here says that the contract is only terminable at the conclusion of the training plan itself and that you can’t just simply provide notice to say we’re going to terminate.

Equally to that, employees should tread carefully when they’re considering terminating apprenticeship as a result of any kind of misconduct that has taken place. Often, accepting the fact that they are apprentices, there will also be an issue there in terms of how they’re performing during their apprenticeship. The employer may see an apprentice as not performing correctly or maybe that they’re not attending work on time, the usual things that would apply to an employee. But the bar is that much higher for the apprentice. Certainly, it is in a situation whereby you can simply apply your normal rules and procedures to the apprentice.

Scott: So, if I were an employer, there’s an apprentice who does something daft, they crash the forklift into a wall or something like that, had that been an employee, you might consider dismissal because it was negligent or whatever. It’s much more difficult with an employee who happens to be an apprentice.

Seamus: Absolutely. When the employer is looking at the circumstances for the apprentice, it must make the decision on the basis of taking into account the experience of the apprentice and it must provide them at all times with guidance and opportunities to improve. The basics are they are an apprentice. They are on an apprenticeship. They’re on a learning curve and that has to be accepted.

The early termination of an apprenticeship, there’s risks in relation to an employer doing it. It really has to be those extreme circumstances where there is clear gross misconduct and even sometimes where there would be gross misconduct, it might not be enough to get you across the line for the termination of the apprenticeship. So, you really are looking at those circumstances in extreme cases and unusual cases that will not be for the standard matters that we would really see as misconduct.

Scott: You have to really take legal advice because the costs are so much higher.

Seamus: Yes.

Scott: The compensation would be to the end of the apprenticeship, but also future loss of earnings. The person can no longer be 100% earner because they’ll qualify in whatever trade they’re in.

Seamus: Absolutely. There’s a concern that by terminating the apprentice contract that you really are having a significant detrimental impact upon their career. It can be career ending because you can imagine being an apprentice and being dismissed and trying to pick up and get another apprenticeship and you’re obviously going to be high on that new record and these apprenticeships are few and far between, as we know. So, the early termination of the apprenticeship carries all the risks of a normal termination. Then you’re also looking at the potential value of the contract itself.

So, if you’re dismissed and you have a contract for four years, there’s significant liability there for the employer and then in addition, the case law tells us that they can take into account a further period in relation to their losses in the future, so future losses as well and the impact maybe the early termination has had upon that. So, say from that it takes me another year to get another contract and there’s another year’s loss that I potentially have, you take into account pension loss and everything else. It can be built up to be significant.

The only sort of option that I can see for employers here in Northern Ireland when it comes to an apprentice where they really are dissatisfied but they don’t have the grounds in order to terminate the contract for gross misconduct for those extreme cases or maybe to go back to the regulator or the third party colleague or company and see if there’s any kind of transfer that can be done for the apprentice. That might be one way that the employer could look at it, but otherwise, it’s difficult.

Scott: And it’s similar if you have to make redundancies, it should be making the apprentice redundant because they’re not really employed to work. They’re employed to learn. So, this should be about the last one. So, really, you’re looking around trying to find them some kind of placement elsewhere with somebody that can take on an apprentice.

Seamus: Yes. It’s difficult for the employer because there’s all those usual things that are attached to apprenticeships and workers in terms of the living wage, the minimum allowance in terms of things like that. So, it’s difficult for employers whenever they have financial issues or the company is in trouble, but the apprentice almost has an added layer of protection here.

I suppose just in addition to that, there is the issue around if a company has financial issues - a lot of these construction companies where we would maybe have more apprentices get into administration and things like that. I think in those circumstances, there isn’t really an aspect for recovery for the apprentice, but certainly a future employer would be more sympathetic to those circumstances.

Related article: How the apprenticeship levy applies in Northern Ireland.

This article is correct at 02/02/2018

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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