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“Some time ago we amended our Apprentice Contracts to protect us with the dual contract status. We employ apprentices both in our Scotland dealerships and our England dealerships, can we use the same Agreement?”
In short no, the law on apprentices in Scotland is far more uncertain than in England and Wales where the Apprentice Skills Children and Learning Act (ASCLA) 2009, applies so that in England and Wales you can guarantee if they are on a certain type of contract you can terminate and there should be no risk in law that they are apprentices rather than employees.
The point of distinction is that apprentices potentially cannot be terminated in the same way as employees can. The risk being that apprentices can pursue claims for breach of contract in the County Court or Sheriff Court for tens of thousands of pounds based on the argument that the apprenticeship could not be terminated, as the employer terminated and hence damages are payable for the remainder of the apprenticeship term. Potentially claims can also include future loss if the employee argues that they couldn’t continue in their trade.
The Apprenticeship Agreement that you would use in England (and separately there is another for use in Wales) would not ordinarily therefore be used for apprentices in Scotland and a different Agreement would need to be in place for them as ASCLA does not apply in Scotland. It will be important therefore that for a Scottish apprentice the contractual documents support an argument that you can bring an apprenticeship to an end early and not face the kind of claims in the Court for breach of contract. You would therefore want very clear express terms about the circumstances in which the apprenticeship can be brought to an end which could essentially set out that certain matters of capability, conduct, non-attendance at college, poor college work etc could apply and be signed by all the parties (including the training provider). It would still be the case that for best practice a series of warnings is followed to mirror the usual disciplinary process for employees.
The RMI members section contains template documents however if in doubt it is always recommended that you use the advice line and take employment law advice when either recruiting or terminating apprentices.
Motor Industry Legal Services
Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.