Advice regarding apprenticeships needed please

[matt3942]

Re: Advice regarding apprenticeships needed please

Yes, I have said numerous times throughout this thread that the only time an apprentice can be dismissed fairly is if they commit an act of misconduct so severe it renders them unteachable. Even then, it would likely have to be a series of misconducts to justify dismissal. In the case you're referring to, the apprentice was an habitual thief.

I'll copy and paste this, again...

"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

In Flett v Matheson 2006 ICR 673, CA, F worked under a ‘Modern Apprenticeship agreement’, which operated as a tripartite arrangement between him, the ‘employer’ and a Government-sponsored training provider. When he was dismissed without notice, he brought a breach of contract claim before an employment tribunal. The issue was whether F was to be regarded as employed under a contract of employment, a contract of apprenticeship, or neither. This was important because, were he employed under a contract of apprenticeship, he could seek damages in excess of Ł 50,000 in respect of lost earnings and the potential diminution of his future prospects. If, on the other hand, he worked under a contract of employment, his claim would be limited to one week’s pay for being dismissed without proper notice. The Court of Appeal concluded that the tripartite arrangement had the essential ingredients of an apprenticeship; namely, it secured wages for the apprentice for the duration of an apprenticeship; training enabling him or her to acquire valuable skills; and status in the labour market following successful completion of the training. The fact that part of the training was provided by a third party did not deny the contract the classic qualities of apprenticeship.

This one is good.

[matt3942]

Re: Advice regarding apprenticeships needed please

You may need to look at that one more closely. If my memory serves, Fleet was employed by the employer before becoming an apprentice with them, and lost part of his appeal and was awarded minimal damages.

Of course I could remembered that entirely wrong!

[Jojo71]

Re: Advice regarding apprenticeships needed please

This could also be considered for the victimisation as my son had reported it to his manager

On appeal, in Miles v Gilbank (Brief 806) EWCA Civ543, the Court of Appeal agreed with the EAT’sdecision. It found that the manager had encouraged andfostered a work environment in which other managerswere not reprimanded for mistreating G, and wastherefore personally liable for the other managers’discriminatory acts in addition to her own. In thecircumstances, and considering the seriousness of thecase, an award for injury to feelings of Ł25,000 was notmanifestly excessive.

- - - Updated - - -

You may need to look at that one more closely. If my memory serves, Fleet was employed by the employer before becoming an apprentice with them, and lost part of his appeal and was awarded minimal damages.

Of course I could remembered that entirely wrong!

Would never use anything unless entirely sure, will see what I can find

[Openlaw15]

Re: Advice regarding apprenticeships needed please

Yes, I have said numerous times throughout this thread that the only time an apprentice can be dismissed fairly is if they commit an act of misconduct so severe it renders them unteachable. Even then, it would likely have to be a series of misconducts to justify dismissal. In the case you're referring to, the apprentice was an habitual thief.

I'll copy and paste this, again...

"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

The facts are irrelevant in a case, it's the ratio decidendi, ie he legal principle.

[matt3942]

Re: Advice regarding apprenticeships needed please

'The facts are irrelevant in a case.'

Let's all take a few minutes to think about that.

[Openlaw15]

Re: Advice regarding apprenticeships needed please

'The facts are irrelevant in a case.'

Let's all take a few minutes to think about that.

A case = judge interprets statute as Parliament intends; case law is produced consequently. The legal principle is what is the most important part of a case, the case facts are merely background.

[matt3942]

Re: Advice regarding apprenticeships needed please

So, are the facts irrelevant in a case, or merely background (sort of relevant)?

[Openlaw15]

Re: Advice regarding apprenticeships needed please

So, are the facts irrelevant in a case, or merely background (sort of relevant)?

I had it drilled into me that the case facts are merely irrelevant unless material to the ratio.

[Openlaw15]

Re: Advice regarding apprenticeships needed please

Just checked their employee handbook and there is no reference to requesting personal data held by the company. When we send the query in about raising a grievance, we will ask for a copy of my son's appraisal in the follow up and see what happens . I will see what we get back from the training provider just by sending an email. If we don't get what we need I'll send a formal SAR.

The employer has a defence if he can argue that jojo's son was unteachable: Learoyd v Brook [1891] 1 Q.B. 431. Jojo son's facts: "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."

It's likely the employer's lawyer will rely on this case, as playing devil's advocate, it could be argue the facts imply jojo's son is unteachable, as far as the employer is concerned anyway, given the language the employer has used: Learoyd v Brook. I think the onus is therefore on jojo's son's to rebut this presumption. I am trying to provide jojo with an objective opinion, not sugar-coating law, as it's the law that will determine the outcome.

[Openlaw15]

Re: Advice regarding apprenticeships needed please

You may need to look at that one more closely. If my memory serves, Fleet was employed by the employer before becoming an apprentice with them, and lost part of his appeal and was awarded minimal damages.

Of course I could remembered that entirely wrong!

So, jojo son's job is to try and argue that this case should be 'distinguished' from Learoyd 'unteachable.' The employer's lawyer will argue that this case applies as in his client's view, jojo's son was just not making suitable progress (putting it a nice way), so the defence may succeed as the legal principle in Learoyd was not that the person was a thief, but the ratio rests upon the fact that the employer does not have to be burdened by an apprentice who's not up to the job: Learoyd.

[Jojo71]

Re: Advice regarding apprenticeships needed please

[MENTION=77627]Openlaw15[/MENTION], he may struggle to argue that as the Learning Provider is happy with my son's work and wants him to carry on with the apprenticeship with another employer that they are currently trying to source.

Within the period of 3 months and with no sales experience he has sold 9 vehicles.

Surely his track record at sixth form could be used to prove he is not unteachable too

[Openlaw15]

Re: Advice regarding apprenticeships needed please

@Openlaw15, he may struggle to argue that as the Learning Provider is happy with my son's work and wants him to carry on with the apprenticeship with another employer that they are currently trying to source.

Within the period of 3 months and with no sales experience he has sold 9 vehicles.

Surely his track record at sixth form could be used to prove he is not unteachable too

Brilliant, use the words 'should be distinguished because X and Y...

[Openlaw15]

Re: Advice regarding apprenticeships needed please

Yes, I have said numerous times throughout this thread that the only time an apprentice can be dismissed fairly is if they commit an act of misconduct so severe it renders them unteachable. Even then, it would likely have to be a series of misconducts to justify dismissal. In the case you're referring to, the apprentice was an habitual thief.

I'll copy and paste this, again...

"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

I go by common law ( as common is a constitutional source of the UK's unwritten constitution) as in an original authorative source, not some diluted version of it found in Google land. If I can't find an original case i'll then look in a text book or other persuasive source, a barrister's publication or something where a lawyer has expressed a qualified legal opinion on it. You know when it's legal opinion as it's not sugar-coated, it's straight and objective.

[Jojo71]

Re: Advice regarding apprenticeships needed please

[MENTION=77627]Openlaw15[/MENTION] if they were to argue unteachable, who defines what unteachable is.

Another argument to dismiss that defence is it was never mentioned in his dismissal letter and has never been mentioned or documented before