Advice regarding apprenticeships needed please

[matt3942]

Re: Advice regarding apprenticeships needed please

[MENTION=66751]Jojo71[/MENTION] - having looked at the contract, it seems the employer has simply used their standard employment contract and changed the job title. This does not meet the requirements of an apprenticeship agreement, as set out in s32 of the Apprenticeship, Skills, Children and Learning Act 2009, and the Apprenticeships (Form of Apprenticeship Agreement) Regulations 2012. The employer has instead created an apprenticeship contract.

In my opinion, your son is entitled to damages, payable for loss of wages to the end of the contract, and for loss of the training opportunity.

Personally, I would now make contact with an employment advisor at Citizens Advice, or your local Law Centre to discuss how best to proceed.

Please let us know how you get on.

[Jojo71]

Re: Advice regarding apprenticeships needed please

Many thanks [MENTION=7458]matt[/MENTION]3492, will get onto it and let you know how we get on

[des8]

Re: Advice regarding apprenticeships needed please

Agree with Matt that your son has an apprenticeship contract.

Under such a contract the apprentice can only be dismissed for conduct so extreme that he cannot continue to be taught.
Similarly, unless the firm is closing he cannot be made redundant
As he seems to have been dismissed unfairly his compensation should reflect his loss of earnings as an apprentice, plus potential loss of future earnings.

tagging another of our employment gurus to see if she has any ideas on this [MENTION=26290]mariefab[/MENTION]

[Jojo71]

Re: Advice regarding apprenticeships needed please

[MENTION=39710]des8[/MENTION] many thanks. Hope the icing went well.

When my son queried what had happened with personnel they said as it was in his probationary period (which is written in the contract) either side could end the contract with a weeks notice. Does this not apply?

Cheers
Jo

[des8]

Re: Advice regarding apprenticeships needed please

If the probationary period referred to a period before the formal apprenticeship began, it would apply.
However my understanding is that there is no probationary period for an apprenticeship contract, and it becomes extremely difficult for an employer to fairly dismiss an apprentice.
Certainly can't treat them the way your son appears to have been dealt with.
As a minimum as a worker he would need to be advised of his failings and have an opportunity to do better.
There would need to be a proper disciplinary meeting etc etc.
As I said earlier it is sometime since I was involved on the periphery of an apprentice's problem, so I'm still hoping others with more knowledge will comment

[Jojo71]

Re: Advice regarding apprenticeships needed please

Many thanks [MENTION=39710]des8[/MENTION], much appreciated.

[matt3942]

Re: Advice regarding apprenticeships needed please

Hi [MENTION=66751]Jojo71[/MENTION] - I agree with [MENTION=39710]des8[/MENTION]: the probationary period does not apply here. In taking on an apprentice, the expectation is that the employer will work through any conduct or capability issues - they cannot simply let them go because it isn't working out.

[Jojo71]

Re: Advice regarding apprenticeships needed please

Hi,

spoke to citizens advice who said to speak to ACAS who I have already spoken to and they said as he'd not been there 2 years they couldn't really help. I called again today and spoke to another person who was much more helpful. She agreed that there has been a breach of contract as there was a tripartite agreement between my son, his employer and the training company who are providing the in house training and the probationary periods do not apply. She said to wait for the letter to come from the company as to why they had dismissed him, then reply asking why he was not given a chance to rectify the issues, wait for that reply, then write back stating that we believe they have breached the contract and take it from there.

Many thanks for your advice, much appreciated. Will let you know how we are getting on

Jo

[Jojo71]

Re: Advice regarding apprenticeships needed please

Hi,

We've received the letter from my son's employer this morning and I am just trying to compose a letter back to them. I've attached the letter and the job description (found one I could redact).

I will ask why my son has not been given the opportunity to improve.

Do I mention anything about the probationary period as the HR manager keeps referring to it in her letter?

My son disputes being absent from site, he was 20 minutes late back from lunch one day as he got lost in a one way system, he called to let them know what was happening. When he arrived back in the office one of the other salesmen said to him that he was 3 hours late as a joke but this has now been used as a reason to dismiss. Do I dispute or challenge this in the letter? He also mentioned that one of the times he was late back was because two other employees had locked him out causing him to be half an hour late, he explained this to his manager but his manager said why were you time wasting.


Having spoken further to my son it appears there is more to this. My son was subject to workplace 'banter' which he complained about to his manager. His manager said he would have a word with those concerned but nothing was done formally and this 'banter' continued. As he didn't fit in, they have frozen him out. I have gotten him to list some of the instances and to be honest some are quite shocking. His manager was party to some of this 'banter' my son was subject to verbal abuse (he was called a little tw*t and a C**t) by a regular customer and when my son said to his manager later that he didn't like it, he was told he had to put up with it.

I feel so sad and infuriated that he was subject to this, it is causing me problems when trying to write the letter as it's difficult to remove my emotion from it.

The company was started in the early 90's and it appears to be stuck there with regards to what is acceptable and what is not.

Any advice would be much appreciated

Many thanks
Jo

[des8]

Re: Advice regarding apprenticeships needed please

I would advise against replying to his letter until you have advice from those more au fait with employment concerns.
I see problems in the termination of an apprenticeship contract, an unfair termination in that no form of disciplinary action was taken, the bullying, the lack of training detailed in job description (was that really a job description for an apprentice?)

I'm tagging some who are in a better position than me to help you
@mariefab @Snoopy1948 @charitynjw @Openlaw15

and I won't be buying a car from Pentagon!

[Jojo71]

Re: Advice regarding apprenticeships needed please

Thanks [MENTION=39710]des8[/MENTION]. I thought I'd done well with redacting the info, oops. That ad was on LinkedIn.

Have attached the job description my son was given when he started, again looking at this it looks as though they've just amended a standard job description and added the title apprentice to it. In line with the ad he had been enrolled on an NVQ and he was being visited on site by a tutor from a learning provider.

I have got my son to list all the instances of bullying he could remember and if he'd reported it and who to. He only ever reported it to his manager and only ever verbally, although there is a message that he has got from one of the other employees about the time they covered his number plate with an offensive message, it's that offensive I don't want to put it on here but he had abuse shouted at him while he was driving around unaware of what was on his number plate. He informed his manager of this too and nothing was done.

I spoke to the National Apprenticeship Service today and they have said that my son will struggle to get another apprenticeship as he has funding tied up in this apprenticeship and the only thing to do would be to try and get another position where he could carry on with his NVQ.

I am so grateful for your reply, I've spoken to 3 people at ACAS and they all have given me a different answer to the same question. Apprenticeships seem to be a complete minefield

Many thanks

[Openlaw15]

Re: Advice regarding apprenticeships needed please

I would advise against replying to his letter until you have advice from those more au fait with employment concerns.
I see problems in the termination of an apprenticeship contract, an unfair termination in that no form of disciplinary action was taken, the bullying, the lack of training detailed in job description (was that really a job description for an apprentice?)

I'm tagging some who are in a better position than me to help you
@mariefab @Snoopy1948 @charitynjw @Openlaw15

and I won't be buying a car from Pentagon!

First of all, I am so sorry your son has been treated this way. That employer needs a slap by someone his own size.

If your son was under the impression it was a statutory 'apprenticeship' and not a normal contract paying apprentice wages, it's probably misrepresentation: ie a lie to entice the worker to accept a contract for low pay. How old is your son? He is probably entitled to the national minimum wage equivalent, unless there is a legitimate modern apprenticeship. It could be a criminal offence therefore to not pay the equivalent of the national minimum wage:https://www.gov.uk/government/upload...nimum-wage.pdf

So it's therefore not just a civil matter through a tribunal or the courts for unfair or wrongful dismissal.

Victimisation: ie your son suffering a detriment is another issue. Using profanity, ie swearing at him is simply unreasonable conduct by an employer to let it happen and continue. Banter means mutual fun, this is not mutual fun, it's absolutely unreasonable conduct. Harassment is another claim if the detriment is significant, ie bullying and the employer takes no action.

Your son should be able to have the national minimum wage back-dated. It could also be fraud against the employer: misrepresentation for a gain (ie to pay an apprentice wage without there being a genuine Modern Apprenticeship).

[des8]

Re: Advice regarding apprenticeships needed please

Hi,

Personnel ....... confirmed............ they put him on a fixed term contract as an apprentice so he didn't have an apprenticeship agreement.

Jo

Confirming he was on an apprenticeship contract, they have (at least IMO) shot themselves in the foot.
They cannot terminate his employment unless he has committed \n act of serious misconduct

To be a new style ASCLA apprenticeship agreement it must satisfy certain conditions as set out in the Act
1) apprentice must undertake to work for the employer
2) It must be in the prescribed form
3) it must state it is governed by the laws of England and Wales
4)It must state it is connected to a qualifying apprenticeship framework

If those conditions aren't met the company have created an apprenticeship contract



http://www.anapprenticeship.co.uk/fi...dismissal.html

[Jojo71]

Re: Advice regarding apprenticeships needed please

Hi [MENTION=77627]Openlaw15[/MENTION] and thank you for replying.

The wages were well above what an apprentice would be paid, so there is no issue there.

My son is 18 and this was his first job out of sixth form.

They do appear to have misrepresented in that an apprenticeship was offered but what they have given is not. I personally think it was a cheap way of getting a new salesman in and getting someone else to pay for training.

The HR manager keeps referring to fixed term contract yet regulations exclude apprentices from their provisions so they've got their wires crossed and if they did class him on a fixed term contract they are treating him less favourably than the other sales people as they did not pay him commission on his sales. He also sold some insurance which they get vouchers for, after telling his manager he'd sold this insurance his manager said he could have them if he was good, he never received them.

I just wish I'd known how bad it actually was at the time as I would have advised him to write things down and get in touch with personnel as what happened is above and beyond what anyone could reasonably call 'banter'. He was targeted as he didn't feel comfortable with the conversations and said so.

I don't want to mollycoddle my children but I feel that these people do need to be told, if only to prevent someone else from being in the same position as my son. It's a right can of worms though and trying to get to the bottom of what I should do is difficult to understand as even ACAS are giving out mixed messages

Many thanks

[Jojo71]

Re: Advice regarding apprenticeships needed please

Confirming he was on an apprenticeship contract, they have (at least IMO) shot themselves in the foot.
They cannot terminate his employment unless he has committed \n act of serious misconduct

To be a new style ASCLA apprenticeship agreement it must satisfy certain conditions as set out in the Act
1) apprentice must undertake to work for the employer
2) It must be in the prescribed form
3) it must state it is governed by the laws of England and Wales
4)It must state it is connected to a qualifying apprenticeship framework

If those conditions aren't met the company have created an apprenticeship contract



http://www.anapprenticeship.co.uk/fi...dismissal.html

Thanks [MENTION=39710]des8[/MENTION].

I'm struggling to know what exactly to do next as they are so fixated on this probationary period, I need to get them to see they are wrong.

It's so sad that there are still places that can subject someone to this kind of behaviour in the workplace and not see anything wrong with it