Guidance

Guidance notes for the agreement between an employer and DfE

Updated 31 October 2023

Applies to England

This guidance has been developed as a result of user research and feedback from employers. It does not form part of the employer agreement, but employers may find it helpful to refer to.

All employers must accept the employer agreement to access funding to pay training providers for apprenticeship training. If you have any additional questions about the employer agreement, contact the Department for Education (the Department).

Purpose of the agreement

• This is a legally binding document between the employer and the Department for the employer to have access to the Apprenticeship Service.

• It sets out the conditions the employer must accept before being able to receive funding from the Department.

• It is needed to be able to enforce the funding rules and ensure any non-compliance will result in the claw back of any funding.

Information, Audit and Reporting – clause 6

This clause states the specific information and data that the employer may be required to provide, as well as what that data can be used for by the Department and who it can be shared with.

Intellectual property rights - clause 7

‘Intellectual Property Rights’ is a broad description for the set of intangible assets owned and legally protected by a company or individual, from outside use or implementation without consent.

An intangible asset is a non-physical asset that a company or person owns, such as: patents, trademarks, logos (including the Apprenticeships Logo), copyrights and design rights (whether registered or not) and all applications.

This clause refers to anything that belongs to the Department, which must be returned if the agreement ceases or services stop.

It does not give the Department any rights to the employer’s intellectual property or to use it. It just protects the Department’s own intellectual property.

Confidentiality - clause 8

The Department has the right to share information with:

• any of their contractors or consultants

• other government departments

• Parliament

Consultants include organisations like the Department’s external auditors, not the employer’s competitors.

If the Department needs to share any confidential information, they will do this as sensitively and securely as possible.

Freedom of Information - clause 9

This clause confirms the cooperation needed by the employer to openly and transparently provide specific information when requested for the purpose of a Freedom of Information (FOI) request. It sets specific time restraints on this information in order for the Department to be able to handle the request accordingly. It also obliges the Department to assist with any FOIs the employer may receive.

Limitation of liability - clause 12

Some employers have asked for their liability under the agreement to be capped.

The Department’s responsibility through the service is to direct funds for apprenticeships, so the employer agreement covers our complete liability for this. The employer’s responsibility is far wider. For example, employing an apprentice, supporting the successful delivery of the apprenticeship, being responsible for instructing who receives funds and what they purchase. It would therefore not be acceptable to expose the Department to any legal or financial risk arising from the employer’s activities.

The Department is not doing anything which could give rise to any risk for the employer, so this provision does not apply equally to both parties. As a public sector organisation, the Department has a responsibility to manage taxpayers’ money effectively, and it would be wrong to agree to accept any risk from the activities of the employer in this situation. The Department, however, apply proper and reasonable care when enforcing this agreement. The Department’s responsibility is often taken into account when employers decide to sign the agreement.

The Department makes funding available for apprenticeship training, which the employer can choose to take advantage of or not. The Department do not think it would be appropriate to be exposed to any legal or financial risk arising from the activities of the employer, as a consequence of making that funding available to them.

Termination - clause 14

Both the employer and the Department can end the agreement for any reason, by giving 30 days’ notice.

The Department also has the right to immediately end the agreement, for reasons such as:

• the employer breaching the agreement

• insolvency

• fraud

This ensures that the Department can act promptly to protect public funds.

Assignment – clause 15

‘Third Party’ is a generic legal term used for any individual or organisation who does not have a direct connection with the agreement, but who might be affected by it.

Variation – clause 16

This clause allows for the Department to make changes to the agreement at any time, which will require the employer to re-sign and accept the changes.

Waiver – clause 17

This clause refers to one party within the agreement reaching a compromise with the other. One party may not insist on the other party’s exact performance of its obligations under this agreement. It may also be applied where one party gives up its rights to take action or enforce its rights under this agreement.  

Notices – clause 18

A notice means to bring something to the attention of the other party who has signed the agreement.

No Partnership or Agency – clause 20

This clause sets out the relationship between the Department and the employer entering into the agreement.

A joint venture is a specific collaboration on a project or to achieve a certain goal. It is temporary and will lapse when the project or goal is completed.

A partnership agreement is a contract between two or more individuals who would like to manage and operate a business together to make a profit. Each partner shares a portion of the partnership’s profits and losses. Each partner is also personally liable for the debt and obligations of the partnership.