I posted on Linkedin last week about an age discrimination case in which an apprentice was awarded damages for breach of contract when his prospective employer had reneged on an agreement to employ him . One of the issues in that case was whether the agreement that had been reached was an old common law contract of apprenticeship or a statutory apprenticeship agreement. It is really important for employers to ensure that they use apprenticeship agreements and this post explains why that is and the basic agreement conditions in both England and Wales.
Old common law contracts of apprenticeship are extremely inflexible, and their inflexibility means that employers can only terminate them in very limited circumstances. Conduct dismissals are only lawful if it can be shown that the conduct renders the apprentice unteachable and redundancy is only going to be fair in circumstances where a business is closing.
To make apprenticeships more attractive for employers the law was changed just under ten years ago and the concept of apprenticeship agreements was introduced. These agreements do not provide apprentices with enhanced apprentice rights that arise under common law contracts of apprenticeship. Apprentices are given the same employment rights as all other employees.
The law is never that straight forward and there were reforms in England in 2015 with the aim of simplifying the statutory arrangements. It has led to there being different rules in England to those in Wales (sound familiar?!!)
Approved English apprenticeship agreements
An approved English apprenticeship agreement is an agreement which provide for:
- the individual to work as an apprentice in a sector for which the Secretary of State has published an approved apprenticeship standard (standards replaced apprenticeship frameworks in respect of English apprenticeships from May 2015).
- the apprentice to receive training to assist him/her to achieve the approved apprenticeship standard in the work done under the agreement.
The minimum requirements of an approved English apprenticeship agreement
These agreements must:
- be made in writing
- should contain the basic terms of employment required to be given to employees under section 1 of the Employment Rights Act 1996.
- Specify the apprenticeship standard and the level being followed
- Set out the amount of time spent on off-the-job training. The apprentice must receive off-the-job training which is not on-the-job training but which the apprentice also receives during their normal working hours “for the purpose of achieving the approved apprenticeship standard to which the agreement or arrangement relates“. The guidance for levy-paying employers provides that at least 20% of the apprentice’s paid hours, over the planned duration of the apprenticeship, must be spent on off-the-job training.
- Specify the start and end date (including end point assessment)
- Specify the start and end date of a practical period of not less than 12 months, during which the apprentice is expected to work and receive training (this is the period excluding any end point assessment). When agreeing the practical period, the employer must take into account the apprentice’s knowledge and skills, whether the work and training will be done on a full or part-time basis and the approved standard for the apprenticeship.
A signed apprenticeship agreement must be distributed to both signatories(company and apprentice) and a copy must be provided to the main training provider.
A template agreement that is available for use and which is compliant with the minimum standards can be found on the government website. link: https://www.gov.uk/employing-an-apprentice/apprenticeship-agreement
Apprenticeship agreements in Wales
The conditions for entering into a statutory apprenticeship in Wales differ to those in England.
Agreements must:
- be made in writing
- should contain the basic terms of employment required to be given to employees under section 1 of the Employment Rights Act 1996.
- include a statement of the skill, trade or occupation for which the apprentice is being trained under the relevant apprenticeship framework.
- State that it is governed by the law of England and Wales.
- State that it is entered into in connection with a qualifying apprenticeship framework.
- See link for guidance on the standards that apply to Welsh apprenticeship frameworks https://gov.wales/sites/default/files/publications/2018-03/the-specification-of-apprenticeship-standards-for-wales-sasw.pdf
This post should not be relied on as legal advice. The information relates to the UK only. Please contact us for advice on your specific circumstances.
