‘Too many firms do not understand the law around apprenticeships’ – Scots legal firm

06/03/2024
Ben Doherty, Partner and Head of Employment Law at Scottish legal firm Lindsays

WORRYING numbers of Scottish employers are putting themselves at risk of legal action because they do not properly understand their responsibilities to apprentices, an employment law expert has warned.

Ben Doherty, a Partner and Head of Employment Law at leading independent legal firm Lindsays, says that, as the number of companies realising the positive value of apprenticeships has grown, so too have those seeking legal advice after running into challenges.

He has highlighted the need for employers to better understand their obligations as part of Scottish Apprenticeship Week, which runs until Friday (March 8) and highlights the contribution of work-based learning to the Scottish economy.

Mr Doherty said: “Apprenticeships open so many possibilities for people – and opportunities for employers. They can be invaluable for both. In the interests of everyone, though, they need to be carefully and properly managed.

“What many do not appreciate is that the contract of an apprenticeship is quite distinct from other contracts of employment. Training is the primary purpose, with the actual execution of work secondary.

“It is important that employers are aware of their obligations – particularly if they are not used to working with apprentices. If you are taking them on, you are best understanding how they work.

“Trades-based businesses are generally well used to the requirements through decades of experience. But it is becoming increasingly clear from the sorts of enquiries we receive that those less traditional apprenticeship sectors are not.”

One of the distinct differences between apprenticeship and regular employment contacts, which Lindsays lawyers find many do not appreciate, is the higher threshold before someone can be lawfully dismissed.

“Apprentices employed under a contract of apprenticeship have enhanced rights on termination of their employment compared to ordinary employees, and employers owe them greater obligations,” Mr Doherty added.

“There are also extremely limited circumstances in which an apprentice can be dismissed during their apprenticeship, due to performance, poor attendance or misconduct. Essentially, they would have to exhibit behaviour or performance at such a level, so as to demonstrate that they were untrainable, which is relatively difficult to show.

“No-one wants to find themselves in these positions. Those who do, however, are best seeking professional advice.

“The thing which underpins so many successful apprenticeships is recruitment. So much can be made smoother if you find yourself employing the right person, with the right skills, to begin with.”

Lindsays lawyers also advise that apprentices cannot be made redundant unless a business closes or the employer’s business undergoes a fundamental change in character.

In cases where apprenticeship contracts are not renewed, they are not entitled to a statutory redundancy payment.

Scottish Apprenticeship Week – organised by Skills Development Scotland – shines a spotlight on the benefits that work-based learning can bring to people of all ages and backgrounds, employers of all sizes and to the national economy.

Lawyers at Lindsays advise businesses across the country on employment issues from offices in Edinburgh, Glasgow, Dundee, Perth and Crieff. The firm also operates a human resources wing, prism HR.

The latest stories