Is a Modern Apprentice an Employee?: Thorpe -v- Dul and Others

[This case was previously reported on the Workplacelaw Network, 'Status of Modern Apprenticeships', 31 July 2003, by Daniel Barnett.]

Individuals working in terms of the traditional form of apprenticeship contract work under a contract of employment - but what about those working under a Modern Apprenticeship agreement?

A recent decision of the Employment Appeals Tribunal (EAT) provides some guidance. In Thorpe -v- Dul and Others (EAT/0630/02), the EAT decided that Modern Apprenticeship agreements do not fall within the definition of an apprenticeship in the Employment Rights Act 1996 because they are essentially training agreements, which provide job experience. The result of this is that a Modern Apprentice will not automatically be an employee. What this means in practical terms, of course, is that Modern Apprentices may not enjoy the various employment rights that employees do.

However, on a cautionary note, it should not be assumed from this that Modern Apprentices would never be employees. Depending on the facts of the individual case, it is still open to an employment tribunal to decide that a Modern Apprentice is an employee. So how will that issue be decided?

Employment tribunals will have to consider the material facts in much the same way as they would consider whether any other individual, such as, for example, an agency worker is or is not an employee, but there are likely to be particularly important facts to assess, such as the following:

- the details of the particular Modern Apprenticeship scheme;

- the arrangements for payment of the Modern Apprentice, (does the College or the business pay and is the payment a wage or a training allowance?);

- how the Modern Apprentice came to be taken on;

- whether there is any additional documentation detailing the parties' obligations to each other and whether that points towards employment;

- whether the primary obligation in terms of the Modern Apprenticeship is the provision of training or whether it is to perform work for the business; and

- what other obligations the parties have to each other, in practical terms.

Clearly, it makes sense for businesses to be clear about the extent of their obligations towards Modern Apprentices and, for those that are not already in that position, we recommend that they review the basis on which they agree to take Modern Apprentices on - including all the documentation that applies to them and how the arrangements work in practice.

It may be beneficial for businesses to define the arrangements at the outset, as far as they are able to, to decrease the risks of Modern Apprentices being classified as employees to avoid all the potential cost implications of that.
This document is for general guidance and research purposes only, and does not purport to give professional advice. Please check the date at the top of the article; the Workplace Law Network retains historic articles for general research.