Are apprenticeship agreements still legally valid?

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This topic contains 15 replies, has 4 voices, and was last updated by  CarolineC 8 months, 2 weeks ago.

Viewing 16 posts - 1 through 16 (of 16 total)
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  • Cris Hale
    Participant

    Hi all,

    I have been trying to find either an update for the Apprenticeships, Skills, Children and Learning Act 2009, section 32, which specifies what an “apprenticeship agreement” is, such that it either includes standards or gives a basis for considering standards as ‘frameworks’, but I can find neither.

    Given that an app. agreement has to specify a framework, are they even still legally valid?

    Thanks,

    Cris

     
    #225584

    mel_aspinall
    Participant

    Hi Cris,

    I went to an apprenticeship funding workshop in December that was held by Karl Bentley from RSM and Nick Linford and they specifically said that the ESFA want to see an apprenticeship agreement. When I asked Karl if it should be the NAS template, he said yes. And this should be totally separate from the commitment statement. You cannot combine the two as the agreement is between just employer and learner whereas the commitment statement is between 3 parties. That was the rationale!

    HTH

    Mel

     
    #227067

    Cris Hale
    Participant

    Hi Mel,

    Thanks for that. I guess if they haven’t updated their template that also suggests they don’t see a problem with it! We do have the commitment statements sorted, since they are our responsibility, but I had an employer asking about the apprenticeship agreements and we stopped doing them ourselves back in 2015, when I realised they weren’t actually our responsibility.

    Regards,

    Cris

     
    #227075

    mel_aspinall
    Participant

    That’s interesting about stopping using the app agreements in 2015 yourselves. Have you had an audit since stopping using them? I know they’re not part of the critical factors check but I’ve always been asked to show them in the past.

    Thanks,

    Mel

     
    #227194

    Cris Hale
    Participant

    I’ve just had a look through our files and it looks like we didn’t bring it in until August 2016, when we made up our own paperwork (before that we were using some borrowed paperwork which we edited on-the-fly!). Unfortunately our last audit was June 2016, so I can’t confirm that an auditor has checked it.
    The decision was based on the wording of the rules around required evidence, which have stayed largely the same since and currently say you must have “a copy of the written apprenticeship agreement or confirmation that the employer has been told about their legal duty for an apprenticeship agreement”. We include a paragraph about the legal obligations of employers in their declaration, which appears to meet the requirements. If they are unaware, we provide the necessary information regarding app. agreements.
    What we found was that many employers were unwilling to give us contracts, themselves a part of the apprenticeship agreement, so we were obtaining letters confirming that they had contracts instead (I believe the auditor did see some of those). It was just simpler then to get a declaration.
    Here’s hoping the next audit goes as well as the first, but I can’t see that being a problem.

    Regards,

    Cris

     
    #227247

    mel_aspinall
    Participant

    You’re completely right about the whole “is it valid?” theory when the 2009 Act itself refers purely to frameworks. Yet in the Glossary on the funding rules, it clearly makes reference to the 2009 Act. Surely the app agreement is outdated when it comes to Standards now?? And again, you’re right, the onus is on the employer to have this agreement in place. When I spoke to the auditor at the workshop though, he was absolutely adamant that the ESFA want to see a separate app agreement based on the NAS template and a separate commitment statement and a separate contract for services and he carried out the most recent post 1st May 2017 audits and as it’s the responsibility of the provider to hold the evidence pack, it’s our duty to ensure it’s in place.

    It’ll be interesting to see but he did say it was just a controls issue and not a funding error so it would be just a case of a rap on the knuckles rather than the funding affected.

    Good to talk about this – it’s given me something to think about!

     
    #227280

    Cris Hale
    Participant

    I have had a few situations where they’ve clarified wording in response to queries on here, so perhaps the next version will mention it.

    I wouldn’t be surprised if they bring it up at our next audit, and I also wouldn’t be surprised if they took the bit about only requiring confirmation from the employer out of the rule at some point, but I guess we’ll have to wait and see.

    If it’s just a rap on the knuckles that should be okay – we can always amend our process – it’s just difficult to get proper feedback on the rules outside an audit…

    I agree – it’s always useful to get a second opinion, and I’ve found feconnect to be invaluable since it was launched (I think that was during my time).

    Cris

     
    #227441

    Martin West
    Participant

    Hi Cris,
    The current Employer rules are clear on this and it is an obligation on the Employer that they must provide this to you.

    Employers and apprenticeships: things to check
    5. Have I got an apprenticeship agreement with the apprentice?
    An apprenticeship agreement must be signed at the start of the apprenticeship. It is used to confirm individual employment arrangements between the apprentice and the employer.
    Apprenticeship agreement and commitment statement

    E34. An apprenticeship agreement is the document where the arrangements between the apprentice and the employer are confirmed. You can find more information about the apprenticeship agreement on GOV.UK.
    E35. You must have an apprenticeship agreement with the apprentice at the start of, and throughout, their apprenticeship, as defined in the Apprenticeships, Skills, Children and Learning Act 2009.
    You must give evidence of this to the provider to keep in the evidence pack.
    35.1. This can be a written statement of particulars under the Employment Rights Act 1996, a contract of employment or a letter of engagement, where the employer’s duty under the 1996 Act is treated as met.

    All you need to do is to make sure you have a copy of this in the learners file.

    I think you are correct in considering standards as ‘frameworks’ in the context of the Apprenticeship Agreement Template as not all outstanding changes have been updated in the 2009 ACT.
    HTH

     
    #227470

    Cris Hale
    Participant

    Hi Martin,

    That last sentence of E35 again seems to say that they need to provide evidence that they “…have an apprenticeship agreement…”, rather than necessarily having to provide the agreement itself.

    That would fit with some of the files I believe were checked at our last audit being passed, where we had written confirmation from the employer that an app. agreement was in place.

    Cris

     
    #227484

    Martin West
    Participant

    Hi Cris,
    I think you are missing the point as the Apprenticeship Agreement can be a written statement of particulars under the Employment Rights Act 1996, a contract of employment or a letter of engagement, also where these do not comply with the requirements of the ACT then the Apprenticeship Agreement template may also be required.

    I do not think that having written confirmation from the employer would suffice at audit as you are required to have a copy of the above and the rules state the employer must provide you with this.

     
    #227501

    Cris Hale
    Participant

    Hi Martin,

    Whatever form the agreement takes, I couldn’t find anything in the rules that says explicitly that you must have a copy of it (or that the employer must provide the agreement itself as evidence). They describe the form it must take, which seems superfluous in any case given that it isn’t the provider’s responsibility, and as mentioned above it allows for confirmation that an employer has been informed of their responsibility. The closest thing I could find is a requirement to keep “a copy of any revisions to the apprenticeship agreement resulting from a change in circumstance”. I assume this would be changes in hours, updated contracts due to a merger, etc. This doesn’t seem to tally with the other rules, I have to say, but when have they ever been consistent?

    Cris

     
    #227532

    Martin West
    Participant

    Hi Cris,
    I think it is how people interoperate the rules that is inconstant and not the funding rules.

    Do you really think you do not need a copy of the Apprentice Agreement document when the employer has to pass to you a copy for your evidence pack, but you do have to keep a copy of any revisions?

     
    #227542

    Cris Hale
    Participant

    Hi Martin,

    I don’t think the employer does have to give you a copy; it says “you must give evidence of this” – surely if they expected the employer to give you a copy, it would say “you must give a copy of this”?
    As for the requirement to keep a copy of updates, perhaps it is justified even if you don’t take a copy at the start of learning. At the beginning of the apprenticeship you collect several of the particulars of employment of relevance to the apprenticeship, such as the length of employment and contracted hours; it seems reasonable to assume that the updates are not simply to make sure you have every piece of documentation on file, but to evidence that any changes after the start don’t affect eligibility, since your declaration from the employer only applies at their start date and employment is – I believe – the only thing that can affect eligibility after the course starts.
    It would be easier if you could ask the ESFA what their thinking was, but I can’t see that happening.

    Cris

     
    #227552

    CarolineC
    Participant

    Martin, I have a related question from a levy-paying employer who is registering existing staff onto a Leadership and Management apprenticeship. These learners have been employees for some years with various existing contracts of employment. They have some concerns about the apprenticeship agreement template from the ESFA in particular the Q&A pages. Is there any version of the agreement that recognises that apprenticeships can be undertaken by existing employees with existing contracts? Interested to know how others have handled this.

     
    #227892

    Martin West
    Participant

    Hi Caroline,
    The funding rules require that an Apprentice is either:
    34.2.1. either a new job role
    34.2.2. or an existing job role, where the individual needs significant new knowledge and skills

    Where an existing employee is undertaking an Apprenticeship as in 34.2.2 then the following Q and A from the guidance is applicable:
    Does this mean a change to existing contracts or terms and conditions?
    For new starts employers will need to review their documentation to ensure that it meets the requirements of the ASCLA and that it is in the prescribed form set out in the regulations. If the current employment contract used includes a statement to the effect that the employee will undertake an Apprenticeship then changes will be small and just need to set out the skill, trade or occupation for which the apprentice is being trained.

    Yes existing contracts may have to be revised and use of the template would meet the requirement that the Apprenticeship details are included.

    HTH

     
    #227895

    CarolineC
    Participant

    Thanks Martin – I’ll pass that information on to the employer.

     
    #227945
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