Training Contracts; what they must contain
DENTAL BULLETIN, ISSUE 24
4 Types of Apprenticeship
There are currently four types of apprenticeship in England:
1. Contracts of apprenticeship;
2. Apprenticeship agreements – these are applicable to contracts entered into before 26th May 2015 or where there is no approved apprenticeship standard (this is explained in more detail below) and that comply with the legal framework;
3. Approved English apprenticeship agreements – these are apprenticeships entered into after 26th May 2015 and where there is an approved apprenticeship standard;
4. Alternative English apprenticeship agreements – this is where there is no apprenticeship agreement, but the apprentice is working under alternative working arrangements, to receive an apprenticeship certificate.
The Government has recognised that not every apprenticeship will be the same and has therefore appointed ‘trailblazers’ from each industry to create approved apprenticeship standards. At present there are approved standards for dental nurses and technicians and one is currently being created for dental hygiene therapists. There is also an approved standard for dental practice managers.
In Wales the new approved English apprenticeship agreements do not apply; Wales continues to have apprenticeship agreements or contracts of apprenticeship.
Contracts of Apprenticeship
There will be a contract of apprenticeship if the main aim of the contract is training. Such agreements are much harder to terminate than an apprenticeship agreement. This is why it is imperative to ensure you meet the legal requirements for an apprenticeship agreement to avoid liability if you terminate the contract early.
Essentially, if a contract of apprenticeship is terminated before the fixed term period has ended the apprentice will still be entitled to their salary for the remaining time left on the contract. For example, if the contract is for 24 months and you terminate the contract of apprenticeship at 18 months you will be liable for the remaining 6 months on the contract. You may also be liable for loss of future career prospects.
Even if the apprentice has committed an act of misconduct you may still be liable to pay the above to apprentice. That is unless the actions of the apprentice are so extreme that the contract becomes untenable, which will be a high threshold to pass. You also cannot dismiss for redundancy in the usual way.
The contract can end by mutual consent, but we would advise putting in place a settlement agreement to prevent any claims later being pursued against you. The contract can also be terminated once the fixed period has expired, but remember to follow the normal unfair dismissal rules, as an apprentice is an employee for the purposes of employment law rights.
In order for the contract to be an apprenticeship agreement the following requirements apply:
1. The apprentice must undertake to work for the employer.
2. The agreement must be in the “prescribed form”. The prescribed form is laid down in the Apprenticeship Agreement Regulations, which state that:
– The agreement must contain the basic terms of employment required to be given to any employee.
– The agreement must also include a statement of the skill, trade or occupation for which the apprentice is being trained under the relevant apprenticeship framework (which pre-date the approved apprenticeship standards).
3. The agreement must state that it is governed by the law of England and Wales.
4. The agreement must state that it is entered into in connection with a qualifying apprenticeship framework.
Unlike a contract of apprenticeship, these contracts can be terminated in the same way as an employment contract.
Approved English Apprenticeship Agreements
An approved English apprenticeship agreement is an agreement which:
– Provides for an individual to work as an apprentice in a sector for which there is an approved apprenticeship standard.
– Provides for the apprentice to receive training in order to assist the apprentice to achieve the approved apprenticeship standard in the work done under the agreement.
– Must contain the basic terms of employment required to be given to any employee.
– Must comply with any other regulations the Secretary of State may implement.
Again such contracts can be terminated in the same way as an employment contract.
Rights of an Apprentice
As mentioned above, all apprentices are employees for the purposes of employment law rights. This means they are subject to:
– National Minimum Wage – the apprenticeship rate is applicable to those under a contract of apprenticeship or apprenticeship agreement and are in their first year of their apprenticeship or aged under 19 years;
– Holiday entitlement;
– Working Time Regulations;
– Right not to be unfairly dismissed;
– Discrimination laws;
– Statutory sick pay, maternity pay etc.;
– Right to maternity and parental leave etc.;
In relation to discrimination laws, you need to be live to the fact that an applicant of a job will be protected against age discrimination. You should therefore not put age limits on any advert for a trainee position, unless you can objectively justify the need for a younger person. Unfortunately, cost alone is unlikely to be an objective justification.
Given the rise in the number of apprenticeships being offered, have you reviewed your apprenticeship agreements to ensure they are compliant with the relevant legal framework? If not, JFH Law can review and update your contracts for you. It is a relatively simple process and more cost effective than the alternative; potentially a tribunal claim being brought against you.
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Laura Pearce, Senior Solicitor