1. An existing employee wants to enter into our apprentice programme to obtain some additional qualifications. Can we pay her the apprenticeship rate of £3.70 per hour?
Yes – provided the apprenticeship falls under the Apprenticeship, Skills, Children and Learning Act 2009 and is an approved English apprenticeship.
This is because the contract of apprenticeship is treated separately to your employee’s existing contract of employment. If the employee is over 19 years-of-age you can pay her the National Minimum Wage apprenticeship rate for 12 months from the start of her apprenticeship. After 12 months, she will then be entitled to the main rate, which is determined by her age.
However, you will need to discuss this with her first (particularly if this will involve a significant reduction in her salary) to make sure she understands the financial implications of starting an apprenticeship.
2. One of our employees has just finished their apprenticeship contract with us and is due to start another unrelated one. What rate of pay are they entitled to receive?
Provided the second apprenticeship falls under the Apprenticeship, Skills, Children and Learning Act 2009, it will be treated separately from the initial contract of apprenticeship (regardless of whether or not there is a break between the two contracts). This means that you can pay the worker the Apprentice National Minimum Wage for another 12 months from the start of this second apprenticeship.
The current minimum wage rate for an apprentice is £3.70 per hour. This rate applies to apprentices under 19 and those aged 19 or over who are in their first year of the apprenticeship.
Please note, HMRC may contact you to confirm that the second apprenticeship is a genuine and separate contract of apprenticeship rather than a “label” used to avoid paying the correct National Minimum Wage (NMW) rate to the worker.
3. What is the minimum term for an apprenticeship contract?
The minimum duration of an apprenticeship is one year unless the framework, standard specification or assessment plan requires a longer period. The apprentice must be employed until the end-point assessment is completed (if this is applicable).
4. We’ve inherited a number of apprentices when we took over a new business. Does the time they have already spent on their apprenticeships count?
Yes – provided they continue to receive training from an approved provider under the terms of their existing apprenticeship contract.
The terms and conditions of all employees who transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 are preserved. This includes those working under a contract of apprenticeship.
For NMW purposes, apprentices are treated as having one apprenticeship contract, which continues unbroken despite the change in the identity of their employer. This means that you will have to continue to pay them at the correct rate – you can’t reset the rate and pay the minimum for the first 12 months after you inherit the apprentices.
5. Can we ask an apprentice to work over 40 hours a week?
That will depend on their age. If the apprentice is under the age of 18, they will be a young worker and restrictions set out in the Working Time Regulations 1998 will apply to their working hours. These state that a young worker should not work more than eight hours a day, or 40 hours in any week (starting at midnight between Sunday and Monday). They are not able to opt out of these provisions.
However, if the apprentice is aged 18 or over, he or she can work up to 48 hours per week (averaged over a 17 week period). However, they can – by agreement – opt out of this in the same way as any other adult member of staff.
6. Are apprentices entitled to take the same amount of holiday as other members of staff?
Yes. All workers, including apprentices, are entitled to receive at least 5.6 weeks paid holiday per year, pro-rated if they work part-time.
Remember that apprentices must be paid for days spent training as part of their apprenticeship. So, if your apprentice works five days a week but spends one of these attending training, they will be entitled to 5.6 weeks holiday per year.
7. Our apprentice is not working out. Can we dismiss him before the end of the contract of apprenticeship?
Yes – provided you employ your apprentice under an English Apprenticeship Agreement, rather than an old-style contract of apprenticeship.
We recommend that you treat your apprentice in the same way you would any other member of staff you are thinking of dismissing. If your apprentice has worked for you for at least two years, they will be able to argue that their dismissal was unfair. You therefore need to have a fair reason (most likely misconduct or capability depending on the reason why they are “not working out”) and you must also follow a fair procedure (including the right to appeal against any sanction).
If your apprentice has worked for you for at least two years, you should not dismiss him or her without giving them the chance to improve and issuing at least one warning. The only real exception to this is if he or she has committed gross misconduct.
Please note, if you have engaged the apprentice under an old-style contract of apprenticeship then there is an implied right included in the contract that you will not prevent the apprentice from completing their training by dismissing them. This makes it very difficult to manage an apprentice’s performance or conduct. If you go ahead and dismiss, and the apprentice successfully brings a claim against you, you will have to pay him or her damages for loss of earnings and training for the remainder of the term, as well as for loss of future career prospects. This can amount to a significant sum of money.
If you are not sure what type of contract your apprentice has, please take advice.
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