Apprenticeships in Confusion Again
The Court of Appeal throws “Apprenticeships” into confusion again!
In an article in the Summer 2005 edition, Issue 41, of The Bottom Line we redefined the definitive definition regarding whether individuals on a Modern Apprenticeship Agreement (MAA) are in fact employees or not. Now we are forced to redefine the definitive again! (We are reliably informed that red tape manufacturers are delighted with the decision!)
The article in Issue 41 was written in response to the, then, recent Employment Appeal Tribunal, decision in Flett v Matherson. That case was appealed to the Court of Appeal and they handed down their decision on 7th February 2006.
In so far as it goes it does provide some helpful guidance. However it then returned the case to the Employment Tribunal with an instruction to make findings of fact regarding three crucial areas, and with an added instruction/exhortation:
“This litigation has already become protracted and the factual uncertainties are such that attempts to resolve the dispute out of court would in my view be appropriate…”
It is therefore probable that the case will be settled, not return to Tribunal and we will be left with unclear legislation as to what, precisely, defines the difference between employee, modern apprentice or “traditional” apprenticeship.
However there are some points which can be gleaned from the decision. The totality of the decision can be defined by quoting a comment from Lord Justice Wall:
“contracts of apprenticeship are, self-evidently extremely important for all involved in them, notably both apprentices and employers. There needs, in my judgement, to be clarity for both. The former, who are often young and inexperienced, need to know in clear terms what is expected of them, and the benefits they are likely to obtain from their periods of apprenticeship. Their employers need to understand clearly they are in turn taking on by engaging an apprentice. Since an appropriate tripartite agreement (common in MAA’s = Peninsula comment) is capable of being a contract of apprenticeship, the obligation to achieve transparency clearly extends to the LSC (Learning Skills Council) and other training providers. The consequences of uncertainty seem to me to be demonstrated by this litigation. The appellant’s IT1 was issued as long ago as the 16th January 2003, and the litigation is, even now, not concluded”.
The problem for employer is, of course, the detail. That is where the Devil resides! From the decision we can determine some principles:
| • | a modern apprenticeship is, necessarily different to a traditional apprenticeship and attracts the same rights and privileges; |
| • | a contract of employment must be treated as “varied or overlaid by the tripartite trainee arrangements” and that variation gives rise to additional obligations on the employer; |
| • | it is a sensible to include a clause containing the provision for attempts to find an alternative employer if the continuation of the arrangement does not for any reason suit the circumstances of the employer who entered into the contract. But if the attempts to find another employer fail, the obligation on the employer remains and he cannot dismiss the apprentice within the period of training, subject of course to the power to dismiss re: conduct and satisfactory progress through the scheme. Remember since it is a training scheme the purpose is to impart knowledge and skill to someone who does not possess it to enable them, at its completion, to stand proud, “time served”. Consequently slow progress, especially where there has been no time limit set for the training, would not of itself be sufficient to warrant dismissal. The employer would have to be able to satisfy himself and a Tribunal that powerful reasons existed to show that the apprentice would not be able to progress to successful achievement of the standards required of a time served tradesman; and |
| • | it would be possible to create a contract which is otherwise one of apprenticeship but is subject to a provision for termination on grounds of redundancy, but it would require clear words to produce that result once the contract had been characterised within an industrial context as one of apprenticeship. It would also require strong reasons to succeed at Tribunal. Where redundancy is an issue and the workforce has to be reduced in number the “employment contract plus” nature of apprenticeships is designed to protect the apprentice because of the different nature of their contracts. For a time served tradesman to be made redundant is unfortunate but he/she does have their time served qualification to take with them to another employer and for the rest of their lives. An apprentice, dismissed without having achieved the status and qualification of “time served”, suffers a damage for the rest of their working life. Therefore the selection of an apprentice for redundancy in preference to a time served individual is likely to be very difficult to justify – especially, as referred to above, if there is no clear express term in the contract allowing the employer so to do. |
Summary
The law relating to apprenticeship is not clear in every respect. Every case will be decided on the particular facts of that case and not the law “in general”. Consequently check your existing documentation.