IGA News

Be Aware - February 2020

Be Aware - February 2020

31 January 2020

Employing Apprentices

Many employers recruit apprentices to enable them to avoid skill shortages in traditionally skilled occupations. Apprenticeships are common within the motor industry and can be very beneficial for both apprentice and master. However as with all staffing decisions you do need to understand them? in order to ensure they are right for you and your business

What is an apprenticeship?

An apprenticeship is a work-based training programme which leads to nationally recognised qualifications. It usually permits the apprentice to attend day release training whilst combining attending the workplace and working alongside experienced employees/workers. It can either be for a fixed term period or until a level of qualification is reached.

Forms of apprenticeship

In 2011 the Apprenticeships, Skills Children and Learning Act 2009 (ASCLA 2009) came into force in England and Wales which provides broadly two legal forms of apprenticeship;

  • a Contract of Apprenticeship, and
  • an Apprenticeship Agreement.

The apprentice will be an employee under both forms of apprenticeship, but the employer will have certain additional responsibilities for an apprentice employed under a Contract of Apprenticeship, particularly relating to terminating the apprenticeship.

Contract of Apprenticeship

Prior to the introduction of ASCLA 2009, the status of an apprenticeship was governed by case law, with the Court of Appeal finding a modern apprenticeship could still constitute a common law contract of apprenticeship as long as it satisfied traditional criteria relating to the duration of the contract and the employer’s obligations under it.

As a general rule, a Contract of Apprenticeship is the default legal position, and this will exist where you and an apprentice entered into a work-based training programme but no or no ASCLA approved written agreement is entered into.

Under a Contract of Apprenticeship, you are required to employ an apprentice until they have been trained to the agreed level. It is particularly difficult for employers to fairly terminate the apprenticeship prior to reaching the required qualification. Managing apprentices is made more difficult as the court guidance on when a Contract of Apprenticeship can be terminated is limited, i.e. where it is virtually impossible for an apprentice to complete their apprenticeship.

In the event of a wrongful termination an apprentice may not only have a claim for enhanced damages due to a loss of career prospects but also can bring a case in the County Court for up to 6 years from termination (as opposed to 3 months in an employment tribunal)

Apprenticeship Agreement

A traditional contract of apprenticeship is a contract under which the apprentice is bound to the employer in order to learn a trade, and the employer agrees to teach and instruct him. In an attempt to improve training for employment, the government first introduced a statutory scheme of apprenticeship agreements in 2011 under the Apprenticeships, Skills, Children and Learning Act 2009 ( ASCLA 2009). A simplified scheme was introduced from 26 May 2015, but the old scheme continues to operate under transitional provisions.

This form of apprenticeship seeks to balance the needs of the apprentice with the needs of the employer. Within this framework an apprentice has normal Employment Law rights as the contract is deemed to be a contract of service rather than a contract of apprenticeship. However, the agreement must satisfy certain conditions under ASCLA 2009 and be in a prescribed form.

There are four conditions required to qualify as an apprenticeship agreement which are:

  • The apprentice must undertake to work for the employer;
  • The agreement must be in the prescribed form, notably it must contain the basic terms of employment required to be given to the employees under Section 1 of the Employment Rights Act 1996. It must also include a statement of the skill, trade or occupation for which the apprentice is being trained under the relevant apprenticeship framework;
  • The agreement must state that it is governed by the law of England and Wales (as the legislation does not extend to Scotland and Northern Ireland);
  • The agreement must state that it is entered into in connection with a qualifying apprenticeship framework.

If any agreement is not in the correct format the protections of the ASCLA will not apply. Members of the IGA have access to template agreements on the IGA website, so we would strongly suggest that you use one of the approved formats in addition to any training agreements when taking on an apprentice.

Employers will still need to take care when dismissing apprentices under this type of apprenticeship where those apprentices have acquired sufficient continuous service for Employment Law rights. Once the apprentice has acquired two years’ employment then the employer will need to be able to demonstrate both a fair reason

We would strongly recommend that all apprentices are placed on an ASCLA apprenticeship agreement where appropriate.

Note the ASCLA does not apply to Scotland and Northern Ireland,

Training agreements

When employing an apprentice an employer can either arrange training programme themselves or enlist the aid of a third-party service who can assist with funding and arranging college courses. However, it is arranged most colleges will look to enter into a training agreement between the college the employer and the apprentice.

It should be noted that this is designed to govern the training requirements of the apprenticeship. It is not a replacement for an apprenticeship agreement between the employer an apprentice.

Again, members of the RMIF are strongly advised to utilise the template agreements on the RMIF website in addition to any training agreements.

Conclusion

Apprenticeships are a common and useful tool and allow employers to provide training and pass on their knowledge to the next generation. However, you will still need to take care when considering an apprenticeship. How an apprenticeship is set up will determine how easily it is to manage the apprentice, the training and if necessary, any disciplinary actions including dismissal.

National Minimum Wage

“Are employers required to pay the national minimum wage to candidates who work a trial shift as part of a recruitment process?

Designating a period of work as an unpaid ‘trial’ does not mean that the individual is not entitled to be paid the national minimum wage; it will depend on whether, in principle, the individual qualifies for the national minimum wage, and whether any of the exclusions apply.

A person qualifies for the national minimum wage if they:

  • are a worker
  • are working, or ordinarily works, in the UK under their contract, and
  • have ceased to be of compulsory school age

If the individual does fall within the definition of a ‘worker’, they may still fall within one of the excluded categories in NMW Regulations 2015, SI 2015/621, regs 51–58. These include:

  • those participating in schemes that are designed to provide training, work experience or temporary work, or to assist in the seeking or obtaining of work
  • those participating in a trial period of work with an employer for a period of six weeks or less, as part of a scheme designed to provide training, work experience or temporary work, or to assist in the seeking or obtaining of work
  • those students doing work experience with an employer as part of a higher education course, or further education course, in the UK
  • those participating in a scheme after being homeless or residing in a hostel for homeless persons

According to guidance issued by BEIS, relevant factors in determining whether a trial period will give rise to an obligation to pay the minimum wage are likely to include:

  • whether a ‘work trial’ is genuinely for recruitment purposes (if it is not, it will generally be considered to be work and the individual will be eligible to be paid the minimum wage)
  • whether the trial length exceeds the time that the employer would reasonably need to test the individual’s ability to carry out the job offered (in the government’s view an individual conducting work in a trial lasting longer than one day is likely to be entitled to the minimum wage in all but very exceptional circumstances)
  • the extent to which the individual is observed while carrying out the tasks
  • the nature of the tasks carried out by the individual and how closely these relate to the job offered (where the tasks are different from those which the job would involve, this may indicate that the employer is not genuinely looking to test the individual’s ability, but rather to get the tasks carried out)
  • whether the tasks carried out have a value to the employer beyond testing the individual (where the tasks are carried out in a simulated rather than real environment, this will normally indicate that they do not have such a value and that the individual is not ‘working’), and
  • whether trial periods are important (aside from recruiting) to the way the employer runs its business (for example, where trial periods are being used by the employer as a means to reduce labour costs, this is likely to indicate that the individual is ‘working’)

Note: from the 1 April 2020 national minimum wage rates increase to the following:-

25 and over: £8.72 (the national living wage rate)

21-24: £8.20

18-20: £6.45

Under 18: £4.55

Apprentice: £4.15

Dash Cams

“I have had a customer use a dash camera to record my work on their vehicle. I am concerned that this might record sensitive information. Is there anything I can do to stop it?”

Dashboard cameras, or ‘Dash cams’ are becoming more common on our roads. Which means they are becoming more common in our garages. Garages needs to be aware of the issues raised and consider what policies to put in place in advance in order to ensure you remain on top of the issue. But what is the legal position?

The law

The use of CCTV is covered by a number of acts of parliament. However, most of these are designed to regulate the use of CCTV by the government and public bodies. The main act to cover private use of CCTV is the Data Protection Act 1998 (DPA). This provides general principles that govern the collection and use of data, including CCTV Footage.

All personal data must be collected and processed in line with the DPA and the principles established under it. The collection must be

  • Fair and lawful
  • For a legitimate and define purpose, and
  • Retained only as long as reasonably required.

As the controller of any system would have to comply with DPA, the Information Commissioners Office has produced a code of practice for surveillance cameras and personal information code of conduct.

Fair and Lawful

Consent is needed before any person can be recorded. Where this recording is carried out in a public place then such consent can be implied. This will not apply where any filming is carried out in an area where privacy can be expected. If the workshop in question was a private area with no viewing area open to the public. For any recording to fully comply with the law then the car owner would have to post clear signs on the vehicle.

Can I Object?

In a public area, no. However, any recording on private property can be restricted by the property owner. As such even with clear signage on the vehicle any motor trader can limit or prohibit dash cam use on their premises.

What precautions can I take?

A basic precaution would be to inspect all vehicles for dash cams. These devices only create problems where they record information that, for whatever reason, the garage does not want to be made public.

Whilst we are yet to see any significant security problems due to dash cams, we have had several instances where staff behavior has cause problems. This has ranged from harmless but unflattering comments about the owner to speeding during the test drive.

Where a camera is present, staff should at least be on their best behavior!

As both the property owner and employee can withdraw such consent, businesses can put clear policies in place to prohibit and/or limit dash camera use. However, do you want to.

There are many legitimate reasons for prohibiting video recordings on your premises. These can include protecting customers’ privacy and property from damage or to protect sensitive data/security. However, customers may want to know why this was necessary and what is the business hiding.

Can I disconnect dash cams?

Yes. However, we would advise that customers are clearly advised this will happen. You also need to be careful. You will be liable for any damage to the dash cam if you are negligent. It is also important to ensure that dash cams are turned back on after the work is done. We have had incidents where accident that would have bene recorded have not been. Whilst this will not automatically result in a liability for the motor trader it is possible, and it will at least damage your reputation.

Conclusion

There is no right answer in this area. Dash cams can establish good practice and reputation, but they can also result in damage to your reputation or worse. For example, dash cam footage could mean that the layout/ contents of your Worksop could be put online or that alarm and security codes are recorded. There has been a case where a workshop was caught by the customer’s dash cam racing the customer’s car at speeds up to 118mph. You will need to assess the risks of cameras to your business.

Our advice is to put a clear policy in place so that staff and customer are aware of their responsibilities and what actions will be taken with regards both the presence of dash cams as well as the behaviour expected where they are present

Unfair Dismissal and Investigation Meetings

Under the Employment Rights Act 1996 (section 98 (4)) one of the important steps needed for an employer to demonstrate a fair dismissal to an Employment Tribunal is to demonstrate that a fair investigation has taken place.

It is generally good practice to hold a separate investigation meeting before a decision is taken to proceed with an invitation to a disciplinary hearing. The ACAS code of practice at paragraph 5 also makes this point. It is frequently however assumed that without a separate investigation meeting any subsequent dismissal will be unfair. That however is wrong, and this has just been re-confirmed by the Employment Appeal Tribunal (EAT) in the Judgment Sunshine Hotel v Goddard.

In the case the EAT confirmed there is no legal requirement for an employer to hold an investigation meeting. Section 98(4) plus the ACAS code of practice requires an employer to act “reasonably”. The key points for an investigation are to consider all the relevant evidence (not just the evidence that supports the employer’s case) and make sure that the employee knows the evidence and full details of the allegations they are facing in advance.

Of course, employers also have to be aware of their own procedures. If there is a disciplinary policy which always requires an employer to hold a separate investigatory meeting, then in such situations that may (but will not always) mean that a subsequent dismissal is unfair.

Comment

The case is good news for employers. We would generally advise that a separate investigation meeting is best practice, but the case goes to show that in some situations (if, for whatever reason, that step has been missed) it is not necessarily fatal to an unfair dismissal defence.

General Note

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in a situation above, call the direct member helpline or 0845 305 4230 at any stage for advice and assistance as appropriate.