Apprenticeships – learning and working time

25 May 2019

This article was featured in the June 2019 issue of the magazine.

Jade Linton, senior associate solicitor at Thursfields, answers a query about whether there is there any benefit in an employer splitting ‘learning’ and ‘working’ hours under an apprenticeship agreement

Whilst seeking inspiration for this article I found myself on the receiving end of an interesting query from a contact. They were seeking my opinion about whether an apprenticeship agreement should contain a split between hours spent ‘learning’ at college and hours spent ‘on the job in work’. 

My contact appreciated that at least 20% of the apprentice’s paid hours over the duration of the apprenticeship must be spent on ‘learning’ but queried whether having a split would prevent the apprentice from accruing benefits in learning hours. They also felt the split might ensure disciplinary issues arising during learning time would be dealt with under the relevant student policies rather than staff policies.  

The only possible ‘benefit’ I could think of in this scenario was accrued holiday, which by virtue of the apprentice’s employment status cannot be reduced by any time spent  learning in any event.  The definition of worker in the Working Time Regulations 1998 (SI 1998/1833) (WTR) includes an apprentice insofar as he/she is employed under a contract of employment or “any other contract, whether express or implied ... whereby the individual undertakes to do or perform personally any work or services for another party” (regulation 2(1), WTR).  Therefore, an apprentice like any other worker would be entitled to 5.6 weeks’ holiday per year under the WTR which would accrue throughout the apprenticeship and which is not dependent upon the apprentice ‘working’.

 

...whether an apprenticeship agreement should contain a split between hours spent ‘learning’ at college and hours spent ‘on the job in work’...

 

What could be argued – although I have yet to find a reported case on the issue in order to comment on whether such an argument would be successful – is that splitting working time and learning time could affect the definition of a week’s pay.  For a worker with normal working hours, a week’s pay is the “amount which is payable... if the [worker] works throughout his normal working hours in a week” (section 221(2), of the Employment Rights Act 1996). One could argue in the case of an apprentice, that “normal working hours” excludes the amount payable during learning hours (outside of the 20% which must fall within the apprentice’s paid hours of course). Whilst arguable in theory, given the salary of an apprentice in general is unlikely to be incredibly high, one would wonder what benefit could be gained by seeking to reduce what counts as a week’s pay.

As for disciplinary issues, it may not be necessary or even desirable to limit disciplinary powers to matters occurring during working time, particularly if the apprentice’s misconduct during learning hours (or indeed at any time outside working hours) has an impact on the employment relationship.  In this situation an employer may want to preserve the right to take action, even if the act or omission took place during learning time.  

So, whilst no categorical answer could be provided for this interesting query, it nevertheless led to some thought-provoking discussion about the pros and the many cons of adopting a split approach to working time.  It would be interesting to hear what other benefits (apart from holiday) our readers may have in mind as well as whether the ‘split’ approach has been used in their particular industry.