The employer and the apprentice - premature termination of contract

This is a tricky area in which there remains much debate as to whether or not apprentices are protected from redundancy per se, and that in making an apprentice redundant would potentially place an employer in breach of contract.

Apprentices are, predominantly, treated like employees, and consequently many businesses make the mistake of making them redundant in much the same way as they do any other employee.

Government guidance on apprentices is quite clear:  an apprentice must work towards an approved apprenticeship standard or framework, and their training must last at least 12-months.  They must be employed in a real job that gives them the opportunity to gain and equip them with the requisite knowledge, experience and skillset they will need in order to pass their assessment.

Apprentices must be paid for time spent training or studying for their apprenticeship, whether it’s while they are attending at work; at a college, or a training organisation.

Employers must offer apprentices the same conditions as other employees working at similar grades or in similar roles within the organisation. This includes:

• paid holidays;
• sick pay;
• any benefits you offer such as childcare voucher schemes;
• any support you offer such as coaching or mentoring;

Though it doesn’t make it right, it may be that the above apprenticeship criterion may explain why employers treat apprentices as employees.

Mr. Danial Kinnear –and- Marley Eternit Ltd t/a Marley Contract Services ETS/4105271/2016

In the recent Scottish case of Kinnear Employment Judge Hendy (sitting alone), and absent the respondent or any respondent representation, awarded £25,000.00 for breach of contract to Mr. Kinnear, whose apprenticeship was terminated early.

Mr. Kinnear was employed by the Respondent under a fixed-term contract of 25-apprenticeship which lasted from 20 October, 2014, until its termination by the Respondents with effect from 7 June, 2016.  Mr. Kinnear’s Contract of Apprenticeship was for a fixed period of four years ending in November, 2018.

Mr. Kinnear received a letter on 7 March, 2014, confirming his appointment with the Respondent. The letter indicated that on completion of the Apprenticeship the Claimant would obtain a Certificate of Completion of a Modern Apprenticeship in Construction Roofing Occupations.

Mr. Kinnear was trained in roofing using predominately concrete roof tiles or ‘Marley’ products. Because of a downturn in work Mr. Kinnear was advised in about July, 2016, that he was being made redundant.

Mr. Kinnear received a letter the following week dated 13 June, 2016. The letter was headed:

“Termination of Employment” and stated: “Due to the current situation in the construction industry we have unfortunately no alternative than to terminate your employment due to the downturn in our workload. You are entitled to one week’s notice which will commence Monday 13 June, 2016. Your last day of employment with the company will therefore be Friday 17 June 15, 2016.”

At the date of termination the Claimant was paid £5.30 per hour by the Respondent. He worked 39-hours per week. His gross weekly wage was £206.70 and his net weekly wage was £198.50. On 17 June, 2016, Mr. Kinnear still had 122-weeks left of his apprenticeship to run. Mr. Kinnear would have been paid a minimum of £198.50 per week over the remaining 122-weeks.  This would amount to £24,217.00.  When looking at Mr. Kinnear’s future losses, although there was no specific figure mooted, it was the tribunal’s view that it would have exceeded its cap for the maximum sum it was able to award, and therefore the tribunal awarded the maximum sum that it could: £25,000.00.

Mr. Kinnear won his claim for damages on the basis that the employer had brought his fixed-term contract to an end early.  He was awarded £25,000.00 – the maximum that the tribunal could award.

The tribunal considered:

1. the current downturn in the economy and Mr. Hendy’s age: that he will be unlikely to now be able to find an employer to take him on to finish the Apprenticeship.
2. the type of Apprenticeship he was doing seems to have been very tailored to the sort of roof products the Respondent company uses;
3. the difference between what Mr. Kinnear should have earned to the end of his apprenticeship (£24,217.00), and any income that mitigated that loss;
4. his likely future loss, which will be affected by the fact that he does not have the roofing qualification that was at the heart of his apprenticeship. This means that when construction work became available, even if he could obtain employment, it would not be at the higher rate of pay that a qualified tradesman would command.

NB

Worthy of note is what Employment Judge Hendy says (at para 12) of his Written Reasons:

“It seems clear to the tribunal that the claimant was an apprentice and, as such, he was entitled to be trained by the respondent company and employed by them until the apprenticeship finished. In this case that would be until November, 2018. It seems from the correspondence that no heed was paid by the company to the claimant’s particular status in the company.”

Notwithstanding that the above-referred to case is a first instance Decision it is likely that any appellate case on point is unlikely to stray from the fundamental principles concerning apprentices in the work place.  If you are an employer of apprentices, take note: these contracts are no less significant than any other workplace arrangements.  Ending a fixed-term apprenticeship agreement early can be expensive.

 Contact the clerks to discuss instructing Seán for employment matters.