Advice regarding apprenticeships needed please

[matt3942]

Re: Advice regarding apprenticeships needed please

An employer CANNOT dismiss an apprentice in the same fashion as a 'normal' employee unless they are working under an apprenticeship agreement, which is not the case here.

The only time dismissal will be fair under an apprenticeship contract - as I've said already - is if the apprentice commits an act of misconduct so severe it renders them unteachable, or if the apprentice has a long-term health issue that prevents them from satisfying the contract.

[matt3942]

Re: Advice regarding apprenticeships needed please

"Apprentices who have apprenticeship contracts have additional rights. If the apprentice commits misconduct or breaches the apprenticeship contract, this does not necessarily mean the employer can stop the training. The misconduct has to be so extreme that it means the apprentice can no longer be taught the trade. They can only be dismissed fairly for misconduct if they are effectively unteachable."

"If apprenticeship contracts specifically state that apprentices will be trained subject to them obeying the reasonable instructions of the employer, dismissal can be slightly easier. But the level of misconduct would still need to be much higher than an ordinary employee for any dismissal to be considered fair in the eyes of the law. It is likely that the apprentice would have to continually disobey instructions rather than commit a one-off offence, for example."

http://www.cipd.co.uk/pm/peoplemanag...-straight.aspx

[Jojo71]

Re: Advice regarding apprenticeships needed please

I told my son to ask personnel for a copy of his apprenticeship agreement, they said he didn't have one. I think they may have got them confused and opted for the contract thinking this would give them greater freedoms to terminate when in fact it is the other way round.

His training provider doesn't appear to be much cop as their response to his dismissal was they don't deal with contracts but they will try to get the restrictive covenant removed so he can carry on his apprenticeship elsewhere.

3 of the 4 reasons given for dismissal could be argued that these are a direct result of the harassment/victimisation he suffered. He didn't trust his colleagues not to put him in a situation that would cause him embarrassment or ridicule making it impossible for them to give him guidance. For example senior salesperson when asked where the nearest cashpoint was told my son there was one on site and directed him to a room which he entered to find a senior management meeting was being held in there, the salesman was aware of this and he and the rest of the office had a laugh about how flustered my son got.

I think I should try to raise a grievance and see what response I get. As my son needs to ask personnel to forward his course work, he could mention it in that email, asking what the procedure would be and who to address it to

[Openlaw15]

Re: Advice regarding apprenticeships needed please

An employer CANNOT dismiss an apprentice in the same fashion as a 'normal' employee unless they are working under an apprenticeship agreement, which is not the case here.

The only time dismissal will be fair under an apprenticeship contract - as I've said already - is if the apprentice commits an act of misconduct so severe it renders them unteachable, or if the apprentice has a long-term health issue that prevents them from satisfying the contract.

I'll put it another way, jojo's son has the burden of proving it was an apprenticeship per se. Documents would either validate or invalidate this assumption. It is likely an unfair or wrongful case of dismissal, joined with claims for victimatision and or harassment. The remedy is either an injunction to commence or convert to modern apprenticeship with the company, or damages for breach of contract,

[matt3942]

Re: Advice regarding apprenticeships needed please

I don't know what you mean by 'apprenticeship per se' - it is an apprenticeship, delivered by a Government-funded training provider. It doesn't matter how it's funded but the fact it is means the provider will have evidence of this, which they will have had to submit to their Prime provider, or directly to the Skills Funding Agency.

I also don't know what you mean by 'modern apprenticeship' - that term hasn't applied in England and Wales for several years.

[des8]

Re: Advice regarding apprenticeships needed please

The employment contract states "Apprentice....."
As the contract does not conform to ASCLA it MUST be an old style apprenticeship contract which gives the apprentice substantial protections, especially against dismissal.

This was ascertained at the beginning of this thread, and I believe OP is really looking for advice on the way forward,

[Openlaw15]

Re: Advice regarding apprenticeships needed please

The employment contract states "Apprentice....."
As the contract does not conform to ASCLA it MUST be an old style apprenticeship contract which gives the apprentice substantial protections, especially against dismissal.

This was ascertained at the beginning of this thread, and I believe OP is really looking for advice on the way forward,

It's not that straight forward, the term 'apprentice' is very subjective. The employer/ lawyer will interpret it in a favourable way, just as Jojo's son/ lawyer will. This is why I was analysing the company's procedure that Jojo provided to look for key definitions.

[Jojo71]

Re: Advice regarding apprenticeships needed please

[MENTION=39710]des8[/MENTION] thanks.
[MENTION=77627]Openlaw15[/MENTION] I posted originally as I felt sure the way they behaved was wrong just wasn't sure of the legalities as with apprenticeships it is quite specific and I wasn't sure which rule applied. [MENTION=67649]matt3942[/MENTION] and [MENTION=39710]des8[/MENTION] have been fantastic and clarified which rule applies. Since beginning this thread it has come to light about the harassment of my son, something I was unaware of. The company are not a small company (900 + employees) so I am quite nervous about making sure I approach this in the right way. I am surprised that they have made the mistake with the contract but they do seem completely unaware of the law regarding employment of apprentices.

Any help or advice is much appreciated as I feel this does need to be addressed and I want to make sure I am fully aware of all scenarios so I don't get the rug pulled from under me

[matt3942]

Re: Advice regarding apprenticeships needed please

From my experience, few employers have procedures that make reference to apprentices. Again, this is mostly due to employers' lack of understanding of their legal obligations in relation to apprentices.

In my opinion the lack of reference to apprentices in the employer's handbook/procedures does not go in the employer's favour.

[Openlaw15]

Re: Advice regarding apprenticeships needed please

@des8 thanks.
@Openlaw15 I posted originally as I felt sure the way they behaved was wrong just wasn't sure of the legalities as with apprenticeships it is quite specific and I wasn't sure which rule applied. @matt3942 and @des8 have been fantastic and clarified which rule applies. Since beginning this thread it has come to light about the harassment of my son, something I was unaware of. The company are not a small company (900 + employees) so I am quite nervous about making sure I approach this in the right way. I am surprised that they have made the mistake with the contract but they do seem completely unaware of the law regarding employment of apprentices.

Any help or advice is much appreciated as I feel this does need to be addressed and I want to make sure I am fully aware of all scenarios so I don't get the rug pulled from under me

Your son will have a preliminary hearing at the tribunal first, the employer's lawyer will try to force you to drop some claims at that point, ie owing to lack of material evidence It's serious, because if you don't have evidence to validate your claims, and if you have a lawyer, you could end up with a costs order worth several thousand: Tribunal Constitution Regulations/ Rules. If you don't have a lawyer, you could have an equivalent, ie time prep/ expenses order. In my view, your son has a claim for unfair dismissal, concentrate on this more than the term 'apprentice.' The ET judge/ panel will decide whether there is a case for what your son alleges, be it unfair dismissal, victimisation, harassment, all of which I stated when I initially provided my opinion. The law has even got more restrict, so ensure your case is water-tight. You will need to provide a statement for your son, if he has no statement he is automatically gagged and ignored, this is normal court procedure.

[matt3942]

Re: Advice regarding apprenticeships needed please

Again, I'm sorry to disagree but in my opinion the crux of the claim has to be the breach of an apprenticeship contract, for which I think there is a strong claim.

[Openlaw15]

Re: Advice regarding apprenticeships needed please

From my experience, few employers have procedures that make reference to apprentices. Again, this is mostly due to employers' lack of understanding of their legal obligations in relation to apprentices.

In my opinion the lack of reference to apprentices in the employer's handbook/procedures does not go in the employer's favour.

Read my sentence again. It common sense/ logical to assume if there is potential benefit to interpret the term 'apprentice' in one way for the employer and another for the employee, both the employer and employee will interpret it subjectively. In contract law though just as it is in tribunal law affecting employment claims, it's the ET judge who has the final say where any confliction of interpreting terms apply. In law, the term is given its everyday meaning generally: under the first rule. However, in an employment industry the interpretation depends on the necessary context it is used. In this case as there are 2 potentially interpretations, it's not so straight forward. It's not what you or I think, it's an objective test largely.

[matt3942]

Re: Advice regarding apprenticeships needed please

Perhaps you'd be kind enough to provide us with the two interpretations - as you see them - of the term 'apprentice' as it applies here.

[Openlaw15]

Re: Advice regarding apprenticeships needed please

Perhaps you'd be kind enough to provide us with the two interpretations - as you see them - of the term 'apprentice' as it applies here.

Fine, let's play devil's advocate. Defence lawyer: "About this alleged apprenticeship that you claim to have,' "isn't it rather the case that you have manipulated this tribunal to hear your claim when there is little prospect of success? 'What material evidence do you have to support your claim?' Defence lawyer requests to ET judge to approach. "Normal procedure under the CPR is that there should be evidence submitted. 'What do we have in fact by way of material evidence. Well we have a random if not sparse term 'apprentice' with no material evidence to support his contrary claims. One should in fact in these conflicting circumstances seek to interpret it as per its every language, as is the law in England and Wales. "A person who is learning a trade from a skilled employer, having agreed to work for a fixed period at low wages," is how said term is interpreted and in this case, there should be no exception. The young man we have before us is simply a 'learner' who contracted with my client to learn the skills from my client at the expense of my client, in so doing he (said young man) volunteered without coercion that is, to work for a fixed period.' My client was well within his (employer's) freedom of contract in this democratic country to end said 'apprenticeship' where said person didn't quite live up to our earlier expectations. The only exception is that his remuneration is well above his peers where they to be on the national minimum wage, or indeed, what may be the normal remuneration."

[des8]

Re: Advice regarding apprenticeships needed please

That seems a fair description of an apprenticeship contract that does not comply with ASCLA and so gives the apprentice enhanced protection!