Advice regarding apprenticeships needed please

[des8]

Re: Advice regarding apprenticeships needed please

If you have tried, and have pointed them in the right direction, but they refuse to see it, you(or rather your son) will have to decide if it is worth taking further action.
Whether or not it would be better initiated through an Employment Tribunal or County Court I couldn't say, although I believe CC will be cheaper

It is atrocious that a company can treat any employee, let alone a youngster just starting out, the way they have treated your son from the very beginning.

If nothing else I hope your son has at least learnt not to sign anything without first ensuring he understands it

[matt3942]

Re: Advice regarding apprenticeships needed please

[MENTION=66751]Jojo71[/MENTION] - I haven't been able to look at your draft letter because I'm on my phone, but I will try to look over the weekend and give you some pointers.

This is definitely an apprenticeship contract, and all apprenticeship contracts are fixed-term so that's neither here nor there. There is no justification for dismissing an apprentice (on an apprenticeship contract) except in very specific situations, so there is no reasonable defense the employer can use.

This is clearly a breach of contract and you should consider bringing your claim to an employment tribunal. You may also add harassment and victimisation to your claim.

As I've said previously, your son should be entitled to damages for loss of wages to the end of the contract, and loss of the training opportunity.

The National Apprenticeship Service clearly knows nothing about how apprenticeships are funded. The training provider should now withdraw your son and funding to them should cease. He should be able to register elsewhere.

I've managed and delivered apprenticeships for almost 13 years and it infuriates me that employers think this kind of behaviour is okay. The only way they'll stop is if they're made to pay.

[Openlaw15]

Re: Advice regarding apprenticeships needed please

Hi @Openlaw15 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

Remember though, jojo, that ACAS can say if there is a case, for which they'll probably tell lots of people they have a case, in theory anyway; but, ACAS cannot and will not say how strong that case is, simply because they're not lawyers. So, don't hold too much stock in ACAS opinion for case strengths.

[matt3942]

Re: Advice regarding apprenticeships needed please

Agree with [MENTION=77627]Openlaw15[/MENTION] - From my experience, ACAS are notoriously unreliable. Don't forget, the first person you spoke with at ACAS told you there was no claim to be made due to the contractual probationary period!

Personally, based on the information you've provided, I think you have a strong case.

[Jojo71]

Re: Advice regarding apprenticeships needed please

[MENTION=67649]matt3942[/MENTION] thank you so much for your reply.

The letter is from my son's employer detailing the reasons for dismissal

I am not quite sure how to go about the next stage, one person at ACAS said to write asking why he wasn't given a chance to improve and then once we have their reply speak to ACAS again and consider a tribunal. I didn't know whether to bring up the victimisation in this letter or not (worried that it looks like sour grapes as it is only reported to personnel after he's been dismissed).

It is quite clear that even though my son reported these instances of victimisation nothing was ever done and there is no evidence of it having been reported formally by his manager (his manager was party to some of it and unfortunately it was only ever verbally reported to him). The only physical evidence we have is a message from one of them who mentions the incident with his number plate.

I didn't know whether to write as ask about raising a formal grievance. I've looked at his employee handbook and this is possible even though he has been dismissed.

My son spoke to his training provider and let them know what had happened. They said they would have a word with his employer to see if they could get the restrictive covenant removed so he could carry on his apprenticeship elsewhere but they have not been in touch since wednesday.

[matt3942]

Re: Advice regarding apprenticeships needed please

[MENTION=66751]Jojo71[/MENTION] - no problem at all.

I think it's worth mentioning the harassment. The number plate incident on its own is sufficient and (in my opinion) if you have some evidence of that having taken place, the likelihood is that there were other incidents.

That's interesting about the employer accepting grievances from ex-employees - there's no legal obligation for them to do so, and many employers don't accept them. Are you able to post that section of the employee handbook? If it is allowed I think it's worth doing; I think your case will be strengthened by showing you have exhausted all of the options before going to a tribunal.

To be honest, I think the restrictive covenant in this case is worthless.

[Openlaw15]

Re: Advice regarding apprenticeships needed please

Hi,

my son started his apprenticeship at the end of May. His learning mentor has only been to see him once (they are supposed to come every month). He has been thrown in at the deep end is often left without support. Friday was one such day, he was sent off to pick up a vehicle and there were numerous issues with it when he got there. His manager was on leave and the other people he could contact were unavailable. He was worried about making a mistake and it all became very stressful but he dealt with it correctly. When he got back the senior person in charge told him to take his lunch break even though it was after lunch. He went on his lunch and came back, as it wasn't busy the senior person in charge said he could go home early (it was approx an hour early).

Today he went in as normal and he asked his manager if he'd heard about Friday and it instigated a chat. During this chat his manager said 'I don't think this is working, I don't feel like you're going to improve and I don't think this position is right for you.' To which my son replied 'I do want this position and I will improve given more time.' To which his manager repeated what he had said before, several times until he eventually said 'go home'. My son was a bit bewildered by this as it appears to have come out of nowhere. My son asked if he could have a meeting with his mentor and his manager and his manager refused and said 'I just don't think it's working'. So my son asked 'what happens now' to which he said 'I'll take you back to your car and you go home.' My son then contacted personnel who were unaware of what was happening but said 'as he was in his probationary period the manger could do that'.

He has come home and I asked to look at his apprenticeship agreement, he hasn't got one. I looked at his contract and they have given him a fixed term contract in which his job title has been given as Apprentice Sales Consultant (Business).

My understanding was that all apprentices should have an Apprenticeship Agreement. I feel as though they have given him the fixed term contract to circumvent the protection apprenticeships afford.

I just wondered where he stood legally as he's been left in limbo.

Many thanks
Jo

Has he appealed the decision to dismiss him with the company at this time? Has he had any form of disciplinary?

[Openlaw15]

Re: Advice regarding apprenticeships needed please

Thanks @des8.

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

The law is what the company procedure says, which will include the matters on probation. Find some company documents through his contract or the company's procedure for dismissal. The probationary period is what the employers cling to, but the law states it's about fair procedure.

[Jojo71]

Re: Advice regarding apprenticeships needed please

[MENTION=77627]Openlaw15[/MENTION] he has not appealed his dismissal, he questioned it with personnel to be told he was in his probationary period so either side could end the contract with a weeks notice. He has had no disciplinary, he had 1 appraisal in which some of the reasons given to dismiss were raised in that he was negative at times and he was absent from site (which he disputes). No indication was given and it wasn't mentioned that if this didn't improve they would get rid of him. During the talk on Tuesday my son asked if he could have a formal meeting with his manager and his mentor and his manager said no it simply wasn't working and he should go home.
[MENTION=67649]matt3942[/MENTION] I've added the Grievance section and the Equal Opportunities section too (as this mentions the policy regarding harassment) I've put spaces to highlight the relevant paragraphs.

I'm sure if personnel were aware of what had gone on they would be horrified, the company is not small (it has over 900 employees) but the departments are remote and appear to rule themselves which is how this has happened. With my son being young and inexperienced he was completely unaware of what he should do and if he could do anything, he thought reporting it to his manager was the right thing but this looks to have been his downfall. He mentioned he felt he was being bullied last week and this week he has been dismissed.

[matt3942]

Re: Advice regarding apprenticeships needed please

I'm sorry to disagree but the law (in this case) is not what the company's procedures say.

As regard to an apprenticeship contract, probationary periods do not apply, and because an apprentice cannot be dismissed - except in cases of misconduct so severe they render the apprentice unteachable - there is no 'correct' dismissal procedure.

An ET judge will likely consider two questions:

1. Was there an apprenticeship contract?
2. Were there reasonable grounds for termination (i.e. severe misconduct)?

[Jojo71]

Re: Advice regarding apprenticeships needed please

@Openlaw15 I've attached the section on probationary period and the pepp torque review (which is their appraisal system)

This is slightly different to what is in his contract. The letter of dismissal refers to 2 clauses within his contract which allows either party to terminate the contract with 1 weeks notice within the 1st 6 months (probationary period) or anytime thereafter (which appears to bypass their grievance procedure)

They have amended a fixed term contract and added the job title apprentice to it. Which I believe negates the probationary period. Apprentices cannot be given standard fixed term contracts don't apply to apprentices as they are not covered by the regulations in their provisions (I think that's right, it's a minefield and trying to get my head around it)

[Openlaw15]

Re: Advice regarding apprenticeships needed please

I'm sorry to disagree but the law (in this case) is not what the company's procedures say.

As regard to an apprenticeship contract, probationary periods do not apply, and because an apprentice cannot be dismissed - except in cases of misconduct so severe they render the apprentice unteachable - there is no 'correct' dismissal procedure.

An ET judge will likely consider two questions:

1. Was there an apprenticeship contract?
2. Were there reasonable grounds for termination (i.e. severe misconduct)?

This assumes an apprenticeship per se. The employer will argue it was never a statutory modern apprenticeship. The ET looks at whether the dismissal was fair or not fair, ie legally valid or not legally valid. This is why we need to look at the company's procedure.

[Openlaw15]

Re: Advice regarding apprenticeships needed please

@Openlaw15 I've attached the section on probationary period and the pepp torque review (which is their appraisal system)

This is slightly different to what is in his contract. The letter of dismissal refers to 2 clauses within his contract which allows either party to terminate the contract with 1 weeks notice within the 1st 6 months (probationary period) or anytime thereafter (which appears to bypass their grievance procedure)

They have amended a fixed term contract and added the job title apprentice to it. Which I believe negates the probationary period. Apprentices cannot be given standard fixed term contracts don't apply to apprentices as they are not covered by the regulations in their provisions (I think that's right, it's a minefield and trying to get my head around it)

Torque relates to physics of the engine, ie thrust or force. This is incompetent to call it 'torque.' It should be "Pep Talk Review."

Company policy on 'Disciplinary' (section 18, in 1st text attach.) is not existent for the first 6 months. So, the company use 'Pep Talk Review (section 5, in 2nd text attach).

However the term 'Apprentice' is not used; there is no mention of procedure for apprenticeships. There is no definition of Apprentice so therefore no explanation of what, in the company's view, of either what an apprentice is and how this differentiates to a new starter, ie on national minimum wage. So, it's easy to argue there is ambiguous procedure, so the dismissal is either wrongful or unfair based on law. To dismiss a person from their job the procedure has to be fair, simple as.

[matt3942]

Re: Advice regarding apprenticeships needed please

From the information provided, this is an apprenticeship, delivered in partnership with a training provider, and funded by the Skills Funding Agency.

Having looked at the contract it is clear the employer entered into an apprenticeship contract - probably inadvertently and without understanding fully its legal obligation to the apprentice.

The law for apprentices is not the same as for a 'normal' employee; the only time termination will be fair is if the apprentice becomes unteachable, or if the contract comes to its natural end, i.e. completion of the apprenticeship.

[Openlaw15]

Re: Advice regarding apprenticeships needed please

@Jojo71 - I haven't been able to look at your draft letter because I'm on my phone, but I will try to look over the weekend and give you some pointers.

This is definitely an apprenticeship contract, and all apprenticeship contracts are fixed-term so that's neither here nor there. There is no justification for dismissing an apprentice (on an apprenticeship contract) except in very specific situations, so there is no reasonable defense the employer can use.

This is clearly a breach of contract and you should consider bringing your claim to an employment tribunal. You may also add harassment and victimisation to your claim.

As I've said previously, your son should be entitled to damages for loss of wages to the end of the contract, and loss of the training opportunity.

The National Apprenticeship Service clearly knows nothing about how apprenticeships are funded. The training provider should now withdraw your son and funding to them should cease. He should be able to register elsewhere.

I've managed and delivered apprenticeships for almost 13 years and it infuriates me that employers think this kind of behaviour is okay. The only way they'll stop is if they're made to pay.

It's not just may add 'harassment, it's using harassment to get around the probationary period. I believe I stated harassment and victimisation, which again gets around the probationary period. It's about finding technicalities to bring a case as the employer can sack (dismiss) even an apprentice if it's done fairly.