We have recently been receiving a lot of questions regarding how apprenticeships are affected during this current pandemic, particularly where the apprentices cannot access their courses, undertake their training at work or where they need to be furloughed.
Today’s blog post is produced to try and answer some of the key issues specifically affecting apprentices. It is essential to seek some advice if you have no contract of employment, or if you are relying on template agreements issued by the training provider or where you have issued contractual documents that are same as those for your normal employees – this is because apprenticeship law is complex and potentially you risk creating breach of contract claims inadvertently.
Questions we are dealing with regularly are:
In short, if your apprentices meet the qualifying scheme rules and you have the contractual right to vary terms either via lay off or short time working, then in principle you can.
You still have to consider your normal employment obligations regarding a fair selection for furlough and we urge you to be cautious as furloughing all apprentices on your team could be considered direct or indirect discrimination based on age, due to the fact that generally apprentices are younger than other team members.
If you want more information on furlough, see our guide here and if you have concerns regarding the selection process for furlough, please give us a call and seek advice – we offer a 30 minute free telephone consultation.
Where possible, the government is encouraging apprentices and learning providers who have had a disruption to their training to undertake what they can via distance learning. So, whilst the apprentice is not on site, it is worth checking what learning they can do – for example could they study for their key skills examinations, complete outstanding course work or have a remote assessment undertaken?
This will vary depending on the type of apprenticeship they are completing, their role and where they are in the completion of their apprenticeship.
Apprentices who are furloughed can continue with their training remotely if their provider allows. However, they need to ensure that they are paid at least the national minimum wage (NMW) or national living wage (NLW) for any time spent training. If you pay your apprentice more than these rates as standard, you may want to seek advice on how you could reduce any contractual liability for pay during this time.
These payments are not in addition to the 80% or £2,500 grant provided by the government and the guidance clearly states that the grant can be used to pay training but if the grant is not sufficient to ensure NMW/NLW compliance, the employer will need to top this up. You need to have monitoring systems in place for management of this especially if you do not have the cash to top up. Seek advice if necessary.
Not usually as the apprenticeship funding rules breaks in learning are defined as a period of less than 4 weeks. If it exceeds this period, then you and the training provider must report this break and the payment of funding will be suspended during the break.
This means that if you are furloughing an employee for a period of more than 4 weeks and they cannot access training you should liaise with your learning provider regarding reporting this break.
The guidance is clear that once employment recommences then the funding will resume however, you have more practical requirements to also consider such as needing to consult with the apprentice regarding varying their terms and conditions to allow for this extension. If you don’t already have comprehensive and specific apprenticeship terms, this would be the ideal time to produce and issue them to protect the business going forwards if necessary.
In short, this will depend on your contract of employment with them and if it specifies what parts of their apprenticeship need to be completed.
You can obviously have a discussion with them regarding your expectations when on furlough and see if that makes an impact. We recommend asking the training provider to liaise with you and the apprentice closely during this time to monitor what work is being completed and during what timescales.
This is when the rules regarding reporting breaks of over a 4-week period apply so look at point 3 above.
If it is expected that these services will resume in due course, then you can potentially also furlough your apprentice, if eligible, under the scheme and subject to contractual requirements, or lay them off, again subject to contractual requirements.
First and foremost, you must ensure that you have the correct type of apprenticeship agreement in place. Unfortunately, we frequently see employers who do not have the correct agreements in place and, whilst that does not mean you cannot make an apprentice redundant, it may be more of a risk so it is definitely worth seeking advice.
However, assuming you do have the correct agreements in place, you need to ensure that you still follow a fair redundancy selection process to ensure that any dismissal is fair and non-discriminatory as this is where there is a further risk of claims.
It’s likely that as a minimum most apprentices will need their fixed term contracts extending and there are lots of considerations to be given to this such as how to agree this variation with the apprentice but also liabilities and obligations if this extension takes them over the 2 years continuous service mark.
We know this is a difficult time for many businesses and we do offer a one off free 30 minute telephone consultation if you need to ask for some more specific advice. Also, at this time if you want to ask us to provide a review the documentation you have in place for apprenticeships and obtain advice on what options you have in managing the current situation, we can make arrangements for a fixed fee quote for this review and report.
If you need to speak to us call 01904 360 295 and someone will take your details and an advisor will call you back or email enquiries@bridgeehr.co.uk