Employee or consumer?

As more universities get into the apprenticeship space, thanks to the apprenticeship levy, they need to consider how their relationship with apprentices differs from that with other students.

Degree apprenticeships are treated as contracts of service―ie, employment. Government guidance is clear that genuine employment sits at the heart of these apprenticeships, and practical arrangements for them put the employer very much in the driving seat. It is the employer who selects the apprentices and the university training provider. It is the employer who has the obligation to pay both the apprentice and the training provider, even if some (or all) of the fees owed to this provider will be defrayed by government using funds raised through the apprenticeship levy. It is the employer who delivers the opportunities for on-the-job training. An apprenticeship is, basically, a job, for which the employer arranges a structured programme of training leading to a qualification.

This does not sit comfortably and straightforwardly within the normal legal framework for the student/university relationship, which is based on the idea of a consumer contract.

The problems posed for apprenticeships are both conceptual and legislative. On a conceptual level, consumer contracts are based on the idea of free choice. The consumer decides whether to enter into a contract at all, and with whom to contract. Consumer protection law is based on the need first to ensure that consumers have clear and accessible information so that their free choice to purchase is also an informed one and, secondly, to discourage suppliers from engaging in aggressive, misleading or oppressive practices that constrain the consumer's freedom to exercise choice. However this concept of consumer choice does not apply to the apprentice who, as an employee, is obliged to undertake the training at the training provider chosen by their employer.

On a legislative level, a consumer is defined as someone acting for purposes wholly or mainly outside their profession or trade―a characterisation difficult to sustain for someone who is effectively studying as part of their job. There is also the expectation that the consumer will be the one paying for the service. Apprentices are not paying, nor is it possible to argue that payment is being made on their behalf. An apprentice is not even contingently liable for the fees; they would not be expected to step in if, for example, the employer and/or government refused to pay.

It is therefore difficult to see how universities could meet consumer protection obligations and how apprentices could enforce them. The legislative framework is built around the contracting process and imposes obligations on a university to provide information to prospective students when it promotes services to them, at the point at which they are offered a place on the course and when they accept an offer of a place, and also to regulate the terms of the contract. Apprentices will not go through any process of applying to the university that would trigger these obligations.

Nor do consumer protection remedies lend themselves to the apprenticeship context. The apprentice is in no position to cancel his or her “contract” with the university, or to seek a discount on the price, or to insist on a repeat performance if the service is considered substandard. If anyone is to exercise these types of rights, it will be the employer.

Of course, as part of their contracts with employers, universities will agree to enrol apprentices as students, and to deal with them in accordance with their student rules and regulations. This will provide the basis on which apprentices may be disciplined and may lodge complaints and appeals in the same way as other students, and indeed, as registered students, pursue complaints to the Office of the Independent Adjudicator. (Although there is a bespoke escalation route via the Skills Funding Agency’s apprenticeship helpline for apprentices dissatisfied with how their complaint has been handled by a university.)

In addition, through the panoply of agreements that must be created and maintained in relation to apprenticeships, universities will have to be clear about what apprentices can expect in terms of the academic element of their training. So apprentices have the de facto benefit of some of what consumer protection law would require.

But the position of apprenticeships raises a wider potential tension between policy drives to make employability a central purpose of higher education and to promote the interests of students as consumers. Put crudely, the function of an employee is to demonstrate, develop and deploy the necessary competencies and skills needed by his or her employer to discharge the role that the employer has identified for that employee. In an employee, flexibility, resilience and resourcefulness are important attributes. The role of the consumer is to purchase goods and services that as closely as possible meet his or her expectations, and the law provides an array of mechanisms to enforce consumer rights where those expectations are not met. Are students who are encouraged to see themselves as the latter necessarily in the best place to learn about what is expected of them as the former?

Smita Jamdar
Partner and Head of Education
T: 0121 214 0332
W: www.shma.co.uk

This article was first published in Research Professional - for further information visit https://www.researchprofessional.com/0/rr/he/views/2017/4/Employee-or-consumer.html

From → General Interest

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