A new series of The Apprentice starts on Thursday, January 5 and candidates will once again be put through their paces in a bid to find Lord Sugar’s next business partner. As always, at the end of each episode, one candidate will be fired in the famous boardroom scene.
The show aims to make for entertaining viewing and, at a time when real life apprenticeships are on the rise, raises interesting questions about its realism. Although you may be unlikely to say 'you're fired' over the boardroom desk, what do you need to consider in the, hopefully unlikely, event an apprentice has to be let go?
We’ve set out below three steps you need to consider before taking any action.
Step 1: Identify the type of contract
First of all, if you’re thinking of dismissing an apprentice during their apprenticeship, you need to identify the type of contract your apprentice is working under - a contract of apprenticeship, an apprenticeship agreement (this includes approved English apprenticeship agreements and alternative English apprenticeship agreements), or an ordinary contract of employment.
There are important differences between the three types of contracts and it’s important to check and, if necessary, seek advice on which type of contract you have in place with your apprentice before you decide how to proceed.
Step 2: Consider the risks of early termination
Apprentices working under a contract of apprenticeship
These types of contracts can only be lawfully terminated early in very limited situations. For example, normal misconduct, poor performance or ordinary redundancy due to a downturn in trade will not usually be sufficient reasons to warrant an apprentice’s dismissal.
If a contract of apprenticeship is terminated early, the apprentice may be able to claim compensation for breach of contract. Damages for this type of claim can be substantial and could include wages for the remainder of the contract of apprenticeship, damages for loss of training, damages for a loss of status and damages for a reduction in future employment prospects.
Apprentices may also be able to raise an automatic unfair dismissal claim and/or unfair dismissal claim depending on their length of service and the reason for their dismissal.
Apprentices working under an apprenticeship agreement
If an apprentice is working under an apprenticeship agreement (including approved English apprenticeship agreements) that is terminated early, they can be treated by their employer in the same way as ordinary employees and do not benefit from enhanced rights to damages on early termination of the apprenticeship.
Any damages for breach of contract will be limited to the usual figure that applies to contracts of employment. For a fixed-term contract, this will be the wages payable for the remainder of the term, unless you are entitled to dismiss on notice, in which case it will be the amount of lost notice pay.
As with contracts of apprenticeship, if you end an apprenticeship agreement early, there may be a risk of an automatic unfair dismissal claim and/or unfair dismissal claim depending on the apprentice’s length of service and the reason for the dismissal.
It’s also important to be aware that all apprentices, whether engaged under a contract of apprenticeship or an apprenticeship agreement are likely to benefit from a higher threshold than is usual for a fair dismissal so you may not be able to dismiss an apprentice fairly in circumstances where it would be fair to dismiss an employee. The reason for this is that the implications of dismissal from an apprenticeship could be more serious than from employment as an apprentice's ability to complete their training could be jeopardised.
Step 3: Consider what process you should follow prior to termination
It can be tempting to circumvent a formal process and jump straight to dismissal, however, before taking any action, think about whether there is a risk of a claim of the types listed above or a discrimination claim.
Even where there is no obvious risk, following a fair procedure (even a shortened one) can be advisable in terms of limiting your exposure to any claim, protecting reputation and maintaining good employee relations.
Gillian Mair is a senior associate and employment law expert at Brodies LLP. For more information visit brodies.com.