An apprenticeship contract cannot be terminated because of redundancy unless the employer’s business closes or fundamentally changes its character. It cannot simply be that the need for apprentices in the business has reduced, as with ordinary employees.
There is a significant body of legal opinion that suggests that apprentices are explicitly protected from redundancy – and that making an apprentice redundant would put the employer in breach of contract with damages to be expected, the level dependent on the remaining term of the apprenticeship and the loss of qualification prospects.
This does not mean, however, that there are no grounds under which you can dismiss an apprentice for redundancy.
If you are not closing down the business, it may be that the change in the business is so significant that it would be impossible to continue to provide the training. Even so there are obligations on the employer. In simple terms it would be expected that you would find the apprentice another employer to take on the remainder of the apprenticeship period of training.
A simple way of doing this is to approach your training provider or the National Apprenticeship Service, who might be able to help you find another employer to help complete the apprenticeship.
The apprentice could seek another employer with your support through written references; as well as the employer acting proactively with their own contacts in their industry.
Under the Regulations an apprentice who is made redundant can complete their Apprenticeship without being employed under an Apprenticeship Agreement as long as the remaining time on the Apprenticeship is less than 6 months.
For the alternative completion conditions to apply:
- The apprentice must have been employed under an Apprenticeship Agreement and be on a recognised Apprenticeship framework prior to being made redundant.
- The Apprenticeship must be completed with 6 months of the date of dismissal and meet the requirements in the framework.
- The apprentice must be working, but not in paid employment, in connection with the framework for the second phase of the Apprenticeship
- The total time spent on the Apprenticeship in the pre and post redundancy period must meet the requirements for the minimum duration for Apprenticeship set out in the Funding Rules.
Where it is known that the apprentice will not be able to complete the Apprenticeship within the 6 month period (including meeting the minimum duration rules) or where the requirements in the framework cannot be met then the provider will need to make a judgement about whether to:
- Make efforts to secure an alternative employer willing to continue the Apprenticeship
- Agree a formal break in learning (and to be re-engaged by the same employer to finish the apprenticeship at a reasonable later date) ;
- Transfer the learner to an alternative non Apprenticeship programme
- Terminate the Apprenticeship.
Even under the conditions of a Modern Apprenticeship, when it comes to redundancy it is best not to think of the apprentice as just another employee, but an individual who has a contract with you to provide training to the point where they are a qualified worker as set out in the framework.
If the company is in a real situation that they cannot retain the apprentice to allow him to finish their training (as per the Apprentice Agreement), then there is an onus of finding an alternative employer or arrangement to allow the apprentice to complete their qualifications. Failure to do so is likely to constitute a fundamental breach of contract.
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