Right to an alternative placement
The TUC in its written evidence supported the principle
established in the Flett v Matheson case by
the Court of Appeal that where an employer does not wish to continue
to provide an Apprenticeship place there should be an obligation
to try and find an alternative placement. Apprentices sacrifice
earnings in order to develop their skills and therefore should
have some guarantee that they are able to complete their programme.
Employers shouldn't be able to end an Apprenticeship without taking
some steps to ensure that the apprentice completes their training.[206]
In reply to our written question asking whether in
the event of a recession employers would be able to terminate
apprenticeships, the Government replied that employers will be
able to "terminate apprentices in the event of a recession.
Wherever possible, we would expect the National Apprenticeship
Service to find the apprentice a place with another employer."[207]
Lord Young explained that:
we share a common goal of trying to maximise the
number of apprenticeships. If we made it into a contract of apprenticeship,
[
] the legal obligations of that would undermine the primary
goal, so we have tried to strike a balance here on giving an apprentice
normal employment rights. Can we guarantee that if an employer
in the final stages decides not to go ahead, that they will find
an alternative place? I do not think we could. I hope we will
be creating a climate with something like the Vacancy Matching
Service, all the services of the National Apprenticeship Service,
that we could do something to deal with those problems. It is
about a balance on employment rights.[208]
We take Lord Young's point that there is a question
of balance here but where an apprenticeship that was provided
under the provisions at clause 21 of the draft Bill is terminated
because of an economic reason or insolvency it is, in our view,
equitable that the right exercisable under clause 21 is reinstated,
irrespective of the age of the redundant apprentice. We
conclude that a provision to enshrine an obligation to attempt
to find an alternative placement on an employer, who does not
wish to continue to provide an apprenticeship, could go against
the grain of the Government's policy to encourage employers to
offer more apprenticeships. We recommend, however, that where
an apprenticeship, to which the provisions at clause 21 applied,
is terminated because of redundancy as defined at section 139
of the Employment Rights Act 1996 or because of insolvency, the
former apprentice's right to an apprenticeship, and concomitant
duty on the National Apprenticeship Service, be reinstated even
if he or she has attained the age of 19.
The right to challenge the quality
of an apprenticeship
We asked in our written questions, what would happen
under the proposed arrangements in a case where an apprentice
considered that he or she was not receiving adequate training.
The Government replied that the:
apprenticeship agreement would be subject to general
employment law provisions. If the employer is in breach of contract,
the apprentice would have recourse to seek remedies in the Employment
Tribunal. However, we would expect the apprentice to raise the
issue with the employer, training provider and the National Apprenticeship
Service before needing to enforce the conditions by bringing proceedings
under employment law.[209]
We raised this matter with Ministers, and Lord Young
said that:
the [National Apprenticeship Service] will address
initial complaints but it is not going to be on the face of the
Bill. [
] I was keen to see what would a young apprentice
or, indeed, any apprentice do if they felt, hang on, this is not
what it said on the tin when I signed up, there ought to be a
means of trying to resolve it without going to any form of law.
It looks like we have got some ideas and we need to take what
you said into account.[210]
We are encouraged by Lord Young's response and agree
that action through the Employment Tribunal should be a last resort
for an apprentice who has concerns about the quality of the training
he or she is receiving. We
recommend that the Government insert a provision into the finalised
legislation requiring the National Apprenticeship Service to establish
a mediation service for apprentices dissatisfied with the quality
of the training they are receiving.
189 Draft Apprenticeships Bill, p 1 Back
190
Draft Apprenticeships Bill, clause 30(4) Back
191
Draft Apprenticeships Bill, Explanatory Notes, para 30; see also
Appendix 1, Error! Reference source not found.. Back
192
Draft Apprenticeships Bill, Explanatory Notes, para 31 Back
193
Q 131 Back
194
As above Back
195
Q 102 Back
196
Q 103 Back
197
Appendix 1, Error! Reference source not found. Back
198
When asked why 19-25 year olds were not covered by this provision,
the Government replied: "Clause 3F is restricted to 16-19
year olds, because the clause gives effect to the entitlement
of young people to an apprenticeship place. The Impact Assessment
reference is to taking forward the proposals in World-class
Apprenticeships"; Appendix 1, Error! Reference source not found.. Back
199
Draft Apprenticeships Bill, clause 21 inserting sections 3E, 3F
and 3I into the Learning and Skills Act 2000 Back
200
World-class Apprenticeships, para 2.17; see also Appendix
1, Error! Reference source not found.. Back
201
Ev 52, para 6.7 Back
202
As above Back
203
Ev 49 Back
204
Ev 72, para 24 Back
205
World-class Apprenticeships, para 2.18 Back
206
Ev 38 Back
207
Appendix 1, Error! Reference source not found. Back
208
Q 184 Back
209
Appendix 1, Error! Reference source not found. Back
210
Q 188 Back