Mr E Parr-Byrne v Mr K Mason T/a Kevin Mason Roofing Services: 1405933/2020
EMPLOYMENT TRIBUNALS
Case No 1405933/2020Venue CHAMBERS AT PlymouthHearing 12 August 2021
Between
Mr E Parr-ByrneClaimantMr K Mason T/a Kevin Mason Roofing ServicesRespondent
Before
Employment Judge N J RoperIn person for claimantDate 7 April 2023
JUDGMENT
The claimant’s claims for discrimination on the grounds of disability and in respect of detriment and/or dismissal arising from protected public interest disclosures are hereby dismissed on withdrawal by the claimant. This does not affect the claimant’s remaining claims as explained in the attached Case Management Summary of today’s date. RESERVED JUDGMENT THE UNANIMOUS JUDGMENT OF THE TRIBUNAL IS THAT: -[1]The claimant’s complaint of direct age discrimination pursuant to sections 5,13 and 39 of the Equality Act 2010 is dismissed.[2]The claimant’s complaint of unfair dismissal pursuant to section100(1)(c) of the Employment Rights Act 1996 is dismissed.[3]The claimant’s claim of breach of contract for wrongful dimissal is dismissed.
REASONS
[1]By a claim form which was presented to the Tribunals on 8 November 2020 (pages 2 – 15 of the hearing bundle (“the bundle”)), the claimant, who was employed by the respondent as an “Apprentice Roofer” from 21 October 2019 until 17 August 2020, brought complaints of age and disability discrimination, breach of contract and unfair dismissal for raising public interest disclosures /health and safety concerns. The claimant’s claims are set out in more detail in the attachment to his claim form which is at pages 14-15 of the bundle. The claimant stated in the attachment that he had received a diagnosis of Asperger’s syndrome and dyspraxia. The claimant’s date of birth is 14 November 2002.[2]The claimant’s ACAS certificate records that the claimant’s EC notification was received by ACAS on 24 August 2020 and that the claimant’s EC certificate was issued by ACAS on 25 August 2020.[3]The respondent’s response form and subsequent amended response are at pages 16 – 31 of the bundle. The respondent denies the allegations (save that the respondent accepts that the claimant was not issued with written particulars of employment). The respondent’s position is set out at pages 27 – 29 of the bundle. The case management order dated 12 August 2021[4]The matter was the subject of Case Management Order dated 12 August 2021 (“the Order”) which is at pages 42 – 51 of the bundle. The agreed List of Issues are at page 49 (paragraph 57 of the Order) onwards of the bundle. The claimant’s claims of disability discrimination and unfair dismissal for allegedly making public interest disclosures were dismissed at that time by the Tribunal upon withdrawal by the claimant. The bundle of documents[5]The Tribunal was provided with an agreed bundle of documents apart from one disputed document (an email from a former customer dated 29 November 2021 at pages 140 – 141 of the bundle). After discussion with the parties however, the claimant no longer objected to its inclusion in the hearing bundle (“the bundle”). The witnesses[6]The Tribunal received witness statements and heard oral evidence from the claimant, his mother Ms E Vuitton and from the respondent, Mr Kevin Mason. The Tribunal enquired whether the claimant required any adjustments to the conduct of the hearing in the light of the claimant’s stated diagnosis of autism but was informed that they were not necessary.
THE ISSUES
[7]The Issues were confirmed / clarified with the parties (by reference to paragraph 57 of the Order) as follows: -[8]The wrongful dismissal claim - (paragraph 57 (1) of the Order) – In summary, the claimant clarified at the hearing (in response to the respondent’s clarification of its case, that the claimant was employed on a statutory Approved English Apprenticeship terminable on one week’s notice) as follows:- (a) the claimant was engaged by the respondent as an apprentice roofer pursuant to which he was enrolled at the South Devon College on a roofing “framework agreement” (b) notwithstanding the introduction of the Apprenticeship (Miscellaneous Provisions) Regulations 2017 (“the 2017 Regulations”) the claimant’s “framework agreement” continued, by virtue of the transitional arrangements, to be regulated by the Apprenticeship (Form of Apprenticeship Agreement ) Regulations 2012 (“ the 2012 Regulations”) (c) that the respondent however failed to comply with the legal requirements of the 2012 Regulations as required to create a “statutory apprenticeship” (including in particular by reason of the accepted failure to issue written particulars of employment pursuant to section 1 of the Employment Rights Act 1996 (“the 1996 Act”)) and (d ) that the claimant was therefore, by default, engaged by the respondent on a two year common law apprenticeship from 25 November 2019 to 31 October 2021 and which accordingly entitled him to damages for breach of contract for the outstanding period and associated losses less mitigation.[9]In summary, the respondent however contended (including by way of clarification of its position during the hearing ) that :-(a) the claimant was employed on an Approved English Apprenticeship (pursuant to the Apprenticeship, Skills, Children and Learning Act 2009 (“the 2009 Act”) as amended by section 3 of the Deregulation Act 2015 and as further regulated by the 2017 Regulations (SI 2017/1310) (“the 2017 Regulations”)(b) the claimant was therefore employed on a contract of service which was lawfully terminated by the respondent on one week’s notice ( which period of notice was orally agreed by the respondent with the claimant at the time that he joined the respondent) and(c) disputed that the 2012 Regulations continued to apply by virtue of any transitional arrangements as, in brief summary, a relevant roofing standard was in place at the material time which meant that the claimant’s agreement was regulated by the 2017 Regulations with which it had complied making it an Approved English Apprenticeship. The respondent further contends that if the Tribunal is not satisfied that the claimant was employed on an Approved English Apprenticeship he was engaged on a contract of service terminable on one week’s notice ( which has been paid) rather than on a common law apprenticeship/ the respondent was, in any event, entitled to terminate the arrangement in light of the claimant’s fundamental lack of capability for the role / his conduct.[10]The claimant’s health and safety unfair dismissal claim pursuant to section 100 (1) (c) of the Employment Rights Act 1996 (“the 1996 Act”)- paragraph 57.2 of the Order. The Tribunal clarified the alleged health and safety concerns upon which the claimant relies for such purposes (by reference to paragraph 2.2 of the Order as follows: -10.1 Paragraph 2.2 (iii) – in or around May/ June 2020 – refusing to undertake / raising concerns with the foreman on site / the respondent about being asked to brush / clean an area because of the claimant’s allergies (paragraph 8 of the claimant’s statement).10.2 Paragraph 2.2 (ii) – in or around July 2020 – (before Joseph Blight started) – Market Hall – Kingsbridge (paragraphs 11 of the claimant’s statement) the claimant contends that he put his foot through an unsafe roof which the respondent found extremely funny stating that it was the nature of the job.10.3 Paragraph 2.2 (i) – in or around July 2020 (during the last month of the claimant’s employment) the claimant contends that he raised concerns with the respondent that the scaffolding at the Dover road site was unsafe (paragraph 15 of the claimant’s witness statement). During the course of the hearing the claimant further contended that he had made an additional (earlier in July 2020) alleged health and safety disclosure to the respondent concerning an incident at the Dover Road site when the claimant put his foot through the roof felt and damaged the ceiling at the property.[11]The claimant’s complaint of direct age discrimination- – Paragraph 57.3 of the Order. In summary, the claimant clarified his claims in respect of his dismissal as follows :-(a) that he was replaced by another apprentice roofer ( comparator - Joseph Blight) who was in a younger age group of under 18 in order for the respondent to avoid paying a higher rate of pay to the claimant as this would have increased under the Minimum Wage Regulations when the claimant reached his 18th birthday on 14 November 2020 and/or that(b) that the respondent dismissed the claimant because he could obtain greater funding by employing a new younger apprentice and /or(c) that the respondent , in any event, operated a pattern of age discrimination whereby he only kept (younger) apprentices for the first year.[12]The respondent denies the allegations including that :-(a) there was any financial advantage to the respondent in replacing the claimant with Joseph Blight/ with an apprentice roofer who was aged under 18 (including that the respondent would have had to pay a higher rate of pay to the claimant under the minimum wage legislation when the claimant turned 18)(b) the respondent would have received / was, any event, aware of any increase in funding for employing a younger apprentice and/or(c) the respondent operated a policy of keeping employees for one year and replacing them with a younger/ cheaper apprentice and/or(d) that the claimant’s dismissal was related in any way to the claimant’s age ( the respondent says that the claimant’s dismissal was by reason of capability/ conduct).[13]Remedy - It was agreed with the parties that the Tribunal would deal with liability first, deferring any consideration of remedy, save that the Tribunal would, if the claimant succeeded in any of his claims, also consider –(a) the claimant’s complaint pursuant to section 38 of the Employment Act 2002 (in respect of the respondent’s accepted failure to issue written particulars of employment as required pursuant to the 1996 Act) and(b) and whether there had been any actionable breaches of the ACAS Code on Disciplinary and Grievance Procedures.[14]It was confirmed with the parties that the claimant’s complaints of disability discrimination and unfair dismissal for allegedly making public interest disclosures had previously been dismissed upon withdrawal by the claimant as formally recorded in an earlier Judgment. FACTS
Background
[15]The claimant’s date of birth is 14 November 2002. The claimant was employed by the respondent from 21 October 2019 until 17 August 2020. The claimant describes himself as having received a diagnosis of high functioning autism (also referred to in his claim form as Asperger’s syndrome) in 2015 (the claimant’s disability impact statement at page 120 of the bundle). The claimant also describes himself as having allergies for which dust and pollen act as catalysts which could result in an anaphylactic reaction. The Tribunal accepts, strictly for the purposes of this case, the claimant’s evidence regarding such medical conditions albeit strictly on the basis that the claimant accepted during his evidence that he did not at any time during his period of employment disclose to the respondent his diagnosis of autism or the effect/ extent of any allergies. The respondent[16]The respondent is a sole roofing trader who trades in the name of Kevin Mason Roofing Services. The respondent has no HR/ administrative support other than from a bookkeeper who deals with wages and associated matters on behalf of the respondent.[17]The respondent has, from time to time, engaged a number of “apprentices”/ other staff to assist him in his business. The relevant persons, in addition to the claimant, are as follows: -17.1 Brent Harris – who worked for the respondent prior to the engagement of the claimant. The Tribunal has not been provided with full details regarding Mr Harris. The Tribunal however accepts on the available evidence that he was aged 16/17 at the relevant time, engaged as apprentice roofer / labourer, and worked for the respondent for about 6 months before leaving to join his friends on a higher rate of pay at another roofing company.17.2 Jacob Blight -date of birth 9 April 2004. Mr Blight is the claimant’s named comparator in respect of his age discrimination claim. Mr Blight started his employment with the respondent on or around 20 July 2020. Mr Blight was engaged as an apprentice roofer/ labourer. Mr Blight was taken on by the respondent after he approached the respondent for work whilst building a wall on a neighbouring family property. Mr Blight was paid £4.50 per hour during an initial trial period thereafter rising to £5 per hour and is currently on £7 per hour. Mr Blight is engaged on an Apprenticeship agreement with the respondent and South Devon College.17.3 Jack Hardy – date of birth 23 April 2002. Mr Hardy was engaged by the respondent on 7 September 2020 and left on 25 September 2020. It was envisaged by the respondent that Mr Hardy would be employed as an apprentice/ labourer. Mr Hardy however informed the respondent that he did not like the work and left the respondent’s employment.17.4 The respondent’s son – date of birth 2 January 1998. The respondent’s son was engaged by the respondent in February 2021 as a roofer / labourer and is currently under notice. The claimant’s son was initially taken on by the respondent at a rate of £8.50 per hour which subsequently increased to £10 per hour. The claimant’s engagement with the respondent[18]The claimant was employed by the respondent as an apprentice roofer with effect from 21 October 2019 in response to a posting on face book advertising an opportunity with the respondent. The claimant attended an interview with the respondent on or before 21 October 2019. It is agreed between the parties that it was agreed during the interview that :-(a) the claimant would be on a month’s trial during which he would be paid £4.40 per hour(b) if successful, the claimant’s salary would then rise to £5 per hour(c) the claimant would be entitled to 28 days’ holiday per year and (c) that the claimant would be entitled to one week’s notice of termination during the first two years of his employment. It was accepted by the respondent that he did not subsequently confirm the agreed terms of employment in writing. The Apprenticeship Agreement[19]The parties subsequently entered into a one-page document. which is described as an “Apprenticeship Agreement” under the auspices of South Devon College. The Apprenticeship Agreement, which is at page 57 of the bundle, states as follows: - “Apprenticeship Agreement “Further to the Apprenticeships (Form of Apprenticeship Agreement) Regulations which came into force on 6 April 2012, an Apprenticeship Agreement is required at the commencement of an Apprenticeship for all new apprentices who start on or after that date. The purpose of the Apprenticeship Agreement is to :- identify the skill, trade or occupation for which the apprentice is being trained; and confirm the qualifying Apprenticeship Framework/ Standard that the apprentice is following. confirm required amount of Off – the- job hours. The Apprenticeship Agreement is incorporated into and does not replace the written statement of particulars issued to the individual in accordance with the requirements of the Employment Rights Act 1996. The Apprenticeship is to be treated as being a contract of service not a contract of Apprenticeship. Apprenticeship Particulars Apprentice name - Elliot Par – Byrne Skill, trade or occupation for which the - Roofing apprentice is being trained Relevant Apprenticeship framework/ Standard and level - Framework Amount of Off the job hours required - 742 Start date - 25 November 2019 Estimated completion of learning date - 31 October 2021”[20]The Apprenticeship Agreement was subsequently signed by the claimant and the respondent on or after 25 November 2019. In the footer to the Apprenticeship Agreement the document is described as Version 3 – May 19 and defines the Regulations referred to in the body of the Apprenticeship Agreement as “the Apprenticeship (Form of Apprenticeship Agreement ) Regulations 2012” ( also page 57 of the bundle).[21]The Tribunal has also been provided with South Devon College document entitled “Combined Commitment Statement & ILP” (at pages 58 – 63 of the bundle) which is stated to be made between the Apprentice, South Devon College and the Employer . This document, which appears to have been completed by South Devon College, sets out further details of the arrangements including that the claimant was engaged on a Framework Roofing for a period of two years starting on 25 November 2019 and ending on 31 October 2021 together with further details for requirements for off the job training of 742 hours and associated matters (including a requirement that the claimant be issued with a statement of terms and conditions). These documents were not however signed by any of the parties. Further, both parties stated in their evidence to the Tribunal, and which is accepted by the Tribunal, that this document was not agreed with/ issued to them at any time during the claimant’s employment with the respondent. Receipt of government grants[22]The respondent received/ receives financial assistance by way of government grants from the CITB in respect of his engagement of apprentices. The respondent received an initial grant of £2,500 and a further top up grant of £1,000 in respect of his engagement of the claimant. This grant was repaid by the respondent on a pro – rata basis following the termination of the claimant’s employment. The respondent received similar grants during Mr Blight’s first year of employment and is due to receive a further payment (the amount of which was at the time of the hearing unknown) during Mr Blight’s second year of employment. It is the claimant’s case that the respondent’s decision to take on Mr Blight/ to retain him in preference to the claimant was prompted by an increase in government funding for new apprentices which was announced by the government in or around July 2020. This is denied by the respondent who says that he was unaware of any alleged increases in government funding for apprentices and that he took Mr Blight on as an additional apprentice roofer because of additional work following covid and in the circumstances referred to above. Having weighed the evidence, the Tribunal is satisfied, on the balance of probabilities, that Mr Blight was taken on by the respondent as an additional apprentice following his approach to the respondent and in the light of an increase in work following covid and further that the respondent was unaware of any changes to government funding at that time. When reaching such conclusions, the Tribunal has taken into account in particular its findings at paragraph 17.2 regarding the circumstances of Mr Blight’s engagement and that there is no evidence that the respondent received any enhanced funding for Mr Blight. The nature of the claimant’s employment with the respondent and associated issues[23]It is the claimant’s case that the respondent did not treat him as an apprentice/ a person who was learning a new skill. The claimant says that he was used by the respondent as an unskilled labourer who was used to carry heavy items and clean up after jobs were complete and further that he was only allowed to use slate during the last month of his employment. The claimant further says that when work was slow he was required to undertake unrelated work for the respondent and his family such as gardening. The respondent says that the claimant undertook general roofing and labouring under his supervision. The Tribunal is satisfied on the evidence, that the claimant’s role was to act as a “roofers mate” providing general unskilled support to the respondent together with labouring and cleaning and that the claimant received minimal on the job training. The claimant’s involvement with South Devon College and associated matters[24]The Tribunal is satisfied in the light of the additional information which the claimant provided during the course of the hearing from the South Devon College/ relating to relevant Government Guidance on apprenticeships that :-(a) the claimant was enrolled with the College on a roofing Framework Agreement (L2 Roofing Agreement)(b) although the claimant did not enter into the relevant Apprenticeship Agreement/ join the course until 25 November 2019 (page 57 of the bundle) he was enrolled on the L2 Roofing Framework course which had already commenced in early September 2019 and which thereafter continued notwithstanding the introduction of any industry standard on roofing and(c) the Framework and Standard roofing courses are different including in respect of the nature of the modules/ assessment. The claimant attended 3 x 5-day training sessions at South Devon College during his period of employment with the respondent. Issues during the claimant’s period of employment with the respondent[25]There were issues relating to the claimant’s timekeeping during his employment with the respondent. When the claimant first started work with the respondent, he had to use his moped to get to work as there was no suitable public transport. It is accepted by the claimant that he was late for work on a number of occasions during this initial period because of difficulties with traffic/ driving conditions (and this is supported by the entry in the pastoral log at page 113 of the bundle). It is also agreed between the parties that in the following period when the claimant was accompanied by his mother by car (whilst he was learning to drive) the claimant was on time / there were no significant timekeeping issues. There is, however, a dispute between the parties regarding the occasions when the claimant subsequently attended for work by motorbike and /or was collected by the respondent in his van. The respondent contends that the claimant was late / not ready for collection on a number of occasions. The claimant denies any significant lateness / says that when he arrived at the respondent’s premises he sometimes had to wait for the respondent. The Tribunal is satisfied, on the balance of probabilities, that there were a number of occasions when the claimant was late / not ready for work. The Tribunal is not however satisfied that this was considered as a serious issue by the respondent as there is no reference to such further concerns in the claimant’s pastoral log.[26]The Tribunal also accepts, on the balance of probabilities, that there were a number of further issues/ incidents during the claimant’s employment including that :-(a) there were a number of occasions when the claimant had completed his allocated work and sat in the works van waiting to go home when other people were continuing to work and(b) there was an incident in or around February 2020 when the claimant belched in front of a client, failed to apologise to the client and thereby made a bad impression (page 140 of the bundle). The claimant however, subsequently apologised to the respondent for his conduct when the respondent raised the incident with the claimant following the meeting.[27]The Tribunal is also satisfied that the parties had at times a strained relationship including that the claimant found the respondent to be difficult to interact with at times because of his changeable moods and also that the respondent was frustrated at times by what he considered to be the claimant’s excessive use of his mobile phone and what he perceived to be the claimant’s inability to follow basic instructions. Furlough[28]The claimant was placed on furlough leave between 30 March 2020 – 11 May 2020 as a result of the covid pandemic. The PPE incident (Issue 2.2 (iii)).[29]Shortly after the claimant’s return from furlough in or around May 2020, the claimant was working on a housing / construction site. It was near the end of the day and the respondent had left site leaving the claimant to clean up under the supervision of the site foreman. The claimant was instructed to brush/ clean up a dusty area containing various materials. The claimant explained to the site foreman that he had allergies and requested a face mask for protection which was declined. The claimant therefore declined to undertake the work without a mask and went home. The Tribunal accepts that the claimant refused to undertake the cleaning up without face protection as he was concerned that it could constitute a risk to his health and safety because of his allergies and the possibility of an anaphylactic reaction. The respondent was informed of the matter by the site foreman the following day. The claimant accepted that the respondent did not respond to the matter in a negative way, that the respondent advised the claimant of the health and safety materials which he carried in his van and also that he had spoken to the site foreman about the matter. The claimant also accepted in his evidence that when he suggested to the respondent that it was a little late to be advising him of the whereabouts of the face masks, the respondent made no comment, and the matter was never referred to again. The Market Hall – (Issue 2.2 (ii))[30]In or around early July 2020, the claimant was working at height (around 30 feet) on the roof of an old market hall whilst the respondent was working at ground level. The claimant contends that the roof was extremely old with damaged / eroded wooden battens and as a result of which he put his foot through the roof but was fortunately able to prevent himself from falling through the roof. The claimant further contends that the respondent was not concerned about the claimant’s welfare, found the incident extremely funny and stated that it was “the nature of the job”. The respondent accepts that an incident occurred at the Market Hall but contends that it occurred because the claimant was not paying proper attention to instructions, that the claimant was not in any danger of falling through the roof as it was “close boarded” and that the claimant put his foot through a board which was no larger than 400mm x 150mm wide. The respondent accepts that after he had established that the claimant was unharmed, he made light hearted comments about the incident.[31]In the absence of any further evidence regarding the incident, the Tribunal accepts, on the balance of probabilities, the respondent’s account of the incident in question. When reaching this conclusion, the Tribunal has taken into account in particular, that the respondent is an experienced roofer who is therefore likely to have a better understanding of the close boarded nature of the roof and the associated risks. The Tribunal however accepts that the claimant genuinely believed himself to be a risk of falling and that such belief was not unreasonable in the light of the heights involved and his lack of knowledge/ experience of the roofing system in question. The Tribunal also accepts that the respondent made light-hearted comments about the incident after the respondent had ascertained that the claimant was unharmed, including that it was the nature of the job, 10 July 2020[32]On 10 July 2020 there was an incident on a job whereby the claimant caused roofing materials to fall onto scaffolding. Following that incident, the respondent had a discussion with the claimant at the end of the working day during which he told the claimant that he had intended to dismiss him that day but had decided instead to give the claimant another chance. The respondent also told the claimant that he needed to “pull his socks up” and that he was going to give him four weeks in which to do so. The respondent further informed the claimant that he was taking on another apprentice as he was so busy and he needed to slow down and that the new apprentice, who would be on a 4 week trial period, would be starting on 13 July 2020 and that he expected the claimant to help with his training. The claimant was shocked by the conversation and therefore spoke to his College Tutor who advised him not to give the respondent any reason to dismiss him and that he should not train anyone else as he was still an apprentice. Dover Road (Issue Paragraph 2.2 (i))[33]On or around 13 July 2020, whilst working on a property in Dover Road, the claimant put his foot through the roof felt damaging the ceiling. The claimant accepted that he had misjudged the positioning of a wooden batten and that he had apologised to the respondent regarding the matter. The respondent was initially annoyed by what had happened and threatened to take the costs of the repairs from the claimant’s wages. The client was however understanding about the accident. Later that week the respondent informed the claimant that his father-in-law, who was a builder, was going to rectify the damage at the property and that the costs would not therefore be taken from the claimant’s wages. Joseph Blight[34]Joseph Blight ‘s employment with the respondent commencement on or around 20 July 2020. The Scaffolding at Dover Road ( Issue2.2 (i))[35]During week commencing 20 July 2020, the claimant was working with the respondent and Mr Blight on a property requiring scaffolding. It is accepted by the respondent that the claimant raised concerns orally with the respondent that the scaffolding did not appear to be properly secured to the property and that it felt unsafe. Following such discussion, the respondent contacted the scaffolding company for advice and assistance. The scaffolding company advised the respondent that the weight ratio of the scaffolding was correct and that they were unable to provide any outrigger assistance for a few days. The respondent was satisfied with their advice and instructed the claimant and Mr Blight to carry on with the roofing work on the property on the following 2 days. The following period[36]In the following 4-week period the claimant was given extra responsibilities by the respondent and was also given some cash bonuses for work successfully undertaken. The respondent did not undertake any review or make any criticisms of the claimant’s work during this period. 14 August 2020[37]On 14 August 2020, the claimant assisted Mr Mason’s father in law to repair the ceiling, which the claimant had previously damaged at the Dover Road property, whilst the respondent went to price up another job. The respondent returned to the property after the claimant had left at the end of the working day. On the respondent’s return to the property, he discovered that the claimant had left, without telling anybody, the client’s car covered in dirty plaster water after cleaning out the buckets. 17 August 2020[38]When the claimant arrived for work on the morning of 17 August 2020, he discovered his personal possessions and tools at the side of the road next to the respondent’s van. The respondent told the claimant that he was dismissed because he had not improved. The respondent paid the claimant one week’s pay in lieu of notice.[39]The claimant, and also his mother, tried unsuccessfully to contact the respondent on a number of occasions following his dismissal in order to obtain a copy of the respondent’s disciplinary and grievance procedure, a copy of a contract of employment and reasons for the claimant’s dismissal .The respondent did not however respond to any such requests. THE SUBMISSIONS OF THE PARTIES[40]The Tribunal has had regard to the closing submissions of the parties together with the additional written information/ material which both parties helpfully provided regarding the application of the 2012/ 2017 Regulations, the associated transitional arrangements and the Government guidance regarding the replacement and phasing out of framework agreements. The Tribunal has also had regard to the guidance and extract statutory provisions relating to health and safety whilst working at height and requirements for the issue of written particulars of employment included at pages 130 – 135 of the bundle together with the Employment Tribunal case of Mr D Kinnear v Marley Eternit Ltd trading as Marley Contract Services (S/4105271/16) at pages 114 – 118 of the bundle (relating to the award of damages in an undefended claim for the wrongful termination of a common law apprenticeship agreement).
THE LAW
[41]The Tribunal has had regard in particular to the following statutory provisions: - The age discrimination claim41.1 Sections 5, 13, 19, 39 and 136 of the Equality Act 2010 (the 2010 Act).41.2The National Minimum Wage Regulations 2015 (“MWRs”) – Regulation 5. The complaint of unfair dismissal on health and safety grounds41.3Section 100 (1) (c) of the Employment Rights Act 1996 (“the 1996 Act”). The contractual claim41.4The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“The 1994 Order”)- Articles 3-5 and 10.41.5 Sections 1 and 230 of the 1996 Act.41.6The Apprenticeships, Skills, Children and Learnings Act 2009 (“the 2009”) and in particular – Sections A1 (3) (6) & (7) A2, 5 and 32.41.7The Deregulation Act 2015 – (including section 3).41.8The Apprenticeships (Form of Apprenticeship Agreement) Regulations 2012 (“the 2012 Regulations”).41.9The Apprenticeship (Miscellaneous Provisions) Regulations 2017 (SI 2017/1310) (“the 2017 Regulations”) and in particular Regulations 3, 4 and 5.41.10 The Tribunal has also had regard in particular to the legal authorities of Dunk v George Wallace & Son Limited 1970, 2 QB, 163, CA and Wallace v CA Roofing Services Ltd 1996 IRLR 435 QBD relating to common law apprenticeships. Other41.11Section 38 of the Employment Act 2002.41.12 The ACAS Code on disciplinary and grievance procedures CONCLUSIONS The claimant’s complaint of direct age discrimination (sections 5, 13 and 39 of the 2010 Act)[42]The Tribunal has considered first the claimant’s complaint of direct age discrimination (paragraph 57.3 of the Order and paragraph 11 above).[43]The claimant’s date of birth is 14 November 2002. The claimant was therefore about to reach the age of 18 approximately three months after his dismissal on 17 August 2020. The claimant says that he has been unlawfully directly discriminated against in respect of his dismissal because of his age as set out at paragraph 11 above.[44]The Tribunal has considered first the allegation that the claimant was replaced by another apprentice roofer, Mr Blight, who was in a younger age group of under 18 and, that the claimant was subsequently dismissed in order that the respondent could avoid paying a higher rate of pay to him as this would have increased under the MWRs when the claimant reached his 18th birthday.[45]In summary, the respondent says that the claimant’s age played no part in the appointment of Joseph Blight and /or the dismissal of the claimant, that the claimant’s rate of pay would not have increased under the MWRs when he reached the age of 18 and that the reason for the claimant’s dismissal was conduct/ capability.[46]The Tribunal has considered whether the claimant has established facts from which the Tribunal could conclude, in the absence of any other explanation, that the claimant has been treated less favourably because of his age in respect of the matters referred to above so as to engage the shifting of the burden of proof pursuant to section 136 of the 2010 Act.[47]The claimant has established on the facts that: -(a) he would have reached his 18th birthday (14 November 2020) approximately 3 months after his dismissal(b) that the apprentice roofer Mr Blight, who was taken on by the respondent on or around 20 July 2020 (date of birth 9 April 2004), was aged 16 at the relevant time and(c) Mr Blight was not dismissed by the respondent.[48]Having given the matter careful consideration, the Tribunal is not however satisfied that claimant has established any prima facie evidence that Mr Blight was employed as a replacement for the claimant because he was younger than the claimant and/or that the claimant was dismissed because of his age, including that the respondent dismissed the claimant in order to avoid paying an increase in pay as required pursuant to the MWRs.[49]When reaching such conclusions, the Tribunal has taken into account in particular that: -49.1 Mr Blight was employed by the respondent as an apprentice roofer in July 2020 after he had asked the respondent for employment and against the background of an increased workload following covid (paragraphs 17.2 and 22 above). Further on 7 September 2020, shortly after the claimant’s dismissal, the respondent took on a further proposed apprentice/ labourer who was then aged 18 (Jack Hardy date of birth 23 April 2002) (paragraph 17.3 above).49.2 Mr Blight was paid during his trial period an hourly rate of pay of £4.50 per hour (which was 10 per hour more than the claimant was paid during his trial period in 2019) which rose to £5 per hour following the completion of his trial period and which was the same hourly rate of pay which the claimant received at the time of his dismissal.49.3 There was no requirement under the MWRs for the respondent to increase the claimant’s rate of pay on his 18th birthday to the higher non apprentice National Minimum Wage as such entitlement only applied to apprentices who were aged 19 or over (Regulation 5 of the MWRs) (and by which time the claimant was projected to have completed his training framework).49.4 The findings of fact concerning the circumstances leading to the claimant’s dismissal including that :-(a) the respondent and the claimant had, at times, a strained relationship (paragraph 27)(b) the respondent’s concerns relating to the claimant’s conduct and capability (paragraphs 25, 26 )(c) the claimant had been warned on 10 July 2020 that his employment was at risk and that improvement was required ( paragraph 32)(d) following such warning there were two further incidents at the Dover Road property – one on 13 July 2020, when the claimant damaged the ceiling (paragraph 33), and again on 14 August 2020, when the claimant left the client’s car in a dirty state and went home without telling anybody (paragraph 37).49.5 The claimant did not contend in his evidence that there were any similar concerns in respect of the conduct or capability of his comparator, Mr Blight.49.6 This allegation is therefore dismissed.[50]The Tribunal has therefore gone on to consider the remaining elements of the claimant’s direct age discrimination claim (paragraph 11 above) namely that the respondent dismissed the claimant because he could obtain greater funding by employing a new (younger) apprentice and/or that the respondent operated a pattern of age discrimination whereby the respondent only retained (younger ie aged less than 18) apprentices for the first year.[51]After giving the matter careful consideration, the Tribunal is not satisfied that the claimant has established facts from which the Tribunal could conclude, in the absence of any other explanation from the respondent, that the claimant has been discriminated against because of age by reason of funding arrangements.[52]When reaching such conclusions, the Tribunal has taken into account in particular that: -52.1 The Tribunal was satisfied on the facts that Mr Blight was taken on for the reasons identified at paragraphs 17.2, 22 and 49.1 above.52.2 The Tribunal was further satisfied on the facts, that there was no evidence that the respondent received and/or was aware of any increased government funding for taking on new / younger apprentices when he engaged Mr Blight (paragraph 22 above).52.3 This allegation is therefore dismissed.[53]Finally, the Tribunal has considered whether the claimant has established any prima facie evidence that he has been unlawfully discriminated against by the respondent because of age on the grounds that his dismissal formed part of a pattern of conduct whereby the respondent only retained younger (ie aged less than 18) apprentices for the first year.[54]Having given the matter careful consideration, the Tribunal is not satisfied that the respondent has established any facts from which the Tribunal could conclude that the respondent had operated any such pattern of conduct.[55]When reaching such conclusion, the Tribunal has taken into account in particular its findings at paragraph 17 above including that :-(a) Mr Harris ( the claimant’s predecessor who was aged 16/ 17at the relevant time ) left the respondent to join his friends at another roofing company at a higher rate of pay (paragraph 17.1)(b) Mr Blight, who is now in his second year, remains in the employment of the respondent(c) Mr J Hardy was aged 18 when he was engaged by the respondent in September 2020 ( and who subsequently left because he did not like the work ) and(d) the respondent employed his son in February 2021 who was aged 23 (date of birth 2 January 1998) when he was engaged by the respondent.[56]In all the circumstances, the claimant’s complaint of direct age discrimination is therefore dismissed. The claimant’s complaint of unfair dismissal for raising health and safety concerns pursuant to section 100 (1) (c ) of the 1996 Act[57]The Tribunal has considered next the claimant’s claim that the principal reason for his dismissal was that being employed at a place where there was no health and safety representative or safety committee, he brought to the respondent’s attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety pursuant to section 100 (1) (c) of the 1996 Act (paragraph 57.2 of the Order and paragraph 10 above).[58]It is accepted by the respondent that there was no health and safety representative or safety committee at the respondent.[59]The claimant contends that he raised with the respondent by reasonable means the matters identified at paragraph 10 above which he reasonably believed were harmful to health and safety and that such matters were singularly or collectively the principal reason for his dismissal. The respondent denies such allegations including that they were, in any event, the principal reason for the claimant’s dismissal which he says was by reason of capability / conduct.[60]The claimant had less than 2 year’s qualifying service at the date of his dismissal by the respondent and the claimant is therefore required to satisfy the Tribunal, on the balance probabilities, that the raising of the alleged health and safety concerns (either singularly or collectively) was/ were the principal reason for the claimant’s dismissal.[61]Paragraph 10.1 above (paragraph 2.2 (iii) of paragraph 57 of the Order) and paragraph 29 above – the PPE incident)[62]This matter relates to the claimant’s request for a face mask whilst on site in or around May 2020 (paragraph 29 above). The Tribunal is satisfied on the facts, that the claimant brought to the attention of the site foreman, by reasonable means, circumstances connected with his work which he reasonably believed were harmful to health and safety namely, that following an instruction to brush / clean up a dusty area the claimant requested from the site foreman a face mask and when the site foreman refused to provide one refused to undertake the task because of his allergies / concerns that if he did so it could cause a possible anaphylactic reaction. The Tribunal is also satisfied that the respondent was informed of the matter by the site foreman and there was also a discussion about the provision of face masks between the respondent and the claimant the following day during which the respondent advised the claimant of the whereabouts of face masks and the claimant indicated that it was “a little late” to inform him of such availability. The Tribunal is therefore satisfied that the claimant has met the qualifying requirements of section 100 (1) (c) of the 1996 Act.[63]The Tribunal is not however satisfied the claimant has established, on the balance of probabilities, that the matter played any part in his subsequent dismissal. When reaching this conclusion the Tribunal has taken into account in particular the following matters:-(a) the incident occurred approximately 3 ½ months prior to the claimant’s dismissal(b) the claimant accepted in his evidence that when the matter was discussed with the respondent, he advised the claimant of the whereabouts of the protective masks, did not respond to the matter in a negative manner and that the matter was never referred to again (paragraph 29 above). Paragraph 10.2 above (paragraph 2.2 (ii) of Paragraph 57.2 of the Order and paragraph 30 – 31 above) – the Market Hall incident).[64]The Tribunal is satisfied, in the light of its findings at paragraphs 30 and 31 above that the claimant brought to the respondent’s attention by reasonable means circumstances connected with his work which he reasonably believed (in the light of the heights involved/potential for serious injury and his lack of knowledge / experience of the roofing system in question) were harmful or potentially harmful to health and safety. The Tribunal is accordingly satisfied that the claimant has established the qualifying requirements for section 100 (1) (c ) of the 1996 Act.[65]Tribunal is not however satisfied that the claimant has established, on the balance of probabilities, that the matter played any part in the claimant’s subsequent dismissal. When reaching this conclusion the Tribunal has taken into account in particular that :-(a) the incident occurred approximately 6 weeks prior to the claimant’s dismissal and(b) its findings at paragraph 31 above that after ascertaining that the claimant was unharmed the respondent made light – hearted comments about what had happened including that it was the nature of the job. Paragraph 10.3 above (paragraph 2.2 (i) of paragraph 57.2 of the Order) and paragraphs 33 and 35 above - relating to Dover Road[66]The Tribunal has considered first the additional allegation that was relied upon by the claimant during the course of the hearing namely, that in July 2020 he raised health and safety concerns with the respondent concerning an incident when the claimant damaged the roof felt / ceiling at the property at Dover Road (paragraph 10.3 and paragraph 33 above).[67]The Tribunal is not satisfied on the facts that the claimant has established the qualifying requirements for the purposes of section 100 (1) (c ) of the 1996 Act in respect of such matter. When reaching such conclusion, the Tribunal has taken into account its findings at paragraph 33 above including in particular, that not only has the claimant failed to establish that he raised any health and safety concerns with the respondent regarding this matter but that he also accepted in evidence that the incident had occurred because he had misjudged the positioning of the roof batten and thereby damaged the roof felt/ the ceiling for which he apologised to the respondent.[68]The Tribunal has therefore gone on to consider the further allegation relating to the scaffolding (paragraph 35 above). The Tribunal is satisfied in the light of its findings at paragraph 35, that the claimant brought to the respondent’s attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety. When reaching such conclusion, the Tribunal has taken into account in particular its findings that the claimant raised concerns with the respondent regarding the safety of the scaffolding following which the respondent sought advice from the scaffolding company as set out at paragraph 35 above. The Tribunal is accordingly satisfied that the claimant has established the qualifying requirements for the purposes of section 100 (1) (c) of the 1996 Act.[69]The Tribunal is not however satisfied that the claimant has established, on the balance of probabilities, that the matter played any part in the claimant’s dismissal. When reaching this conclusion the Tribunal has taken into account in particular its findings at paragraphs 35 and 36 above including that:-(a) when the claimant raised with the respondent his concerns regarding the scaffolding the respondent sought advice from the scaffolding company and(b) during the following period the claimant was given extra responsibilities by the respondent/ received bonuses for work successfully undertaken (paragraph 36). The collective position[70]Finally for the purposes of the claimant’s claim pursuant to section 100 (1) (c ) of the 1996 Act, the Tribunal has considered, whether viewed collectively, the claimant has established, on the balance of probabilities, that the established health and safety concerns were the principal reason for the claimant’s dismissal.[71]The Tribunal is not however satisfied, on the balance of probabilities, that the claimant’s established health and safety concerns were, viewed collectively, the principal reason for the claimant’s dismissal.[72]When reaching such conclusion the Tribunal has taken into account that the claimant has established that he raised three health and safety concerns namely:-(a) relating to the request for a face mask – paragraph 62 above(b) relating to the incident on the roof at the Market Hall – paragraph 64 above(c) and relating to the scaffolding at Dover Road – paragraph 68 above.[73]The Tribunal is not however satisfied that the claimant has established, on the balance of probabilities, that they were collectively the principal reason for the claimant’s dismissal. When reaching this conclusion, the Tribunal has taken into account its findings in respect of each of the alleged matters (paragraphs 63, 65 and 69 above).[74]The Tribunal has further taken into account that viewing the matter overall :-(a) it is satisfied on the facts that the respondent had a number of concerns relating to the claimant’s conduct and capability (paragraphs 25 and 26)(b) the parties had at times a strained relationship – paragraph 27(c) Following an incident on 10 July 2020, the claimant was advised that the respondent had intended to dismiss him but had decided to give him a further 4 weeks in which to improve (paragraph 32) and(d) during that period there were further issues relating to the damage to the roof felt/ ceiling at Dover Road ( for which the claimant accepted responsibility – paragraph 33) and the dirty plaster water on the client’s car at Dover Road on 14 August 2020 (when the claimant left for the evening without rectifying the situation or telling anyone about what had happened – paragraph 37 above).[75]In all the circumstances, the claimant has not established, on the balance of probabilities, that the principal reason for his dismissal was that he had brought health and safety issues to the attention of the respondent pursuant to section 100 (1) (c ) of the 1996 Act and the claimant’s complaint is therefore dismissed. The contractual claim (for breach of contract pursuant to the 1994 Order)[76]The respective legal positions of the parties, which developed on both sides during the course of the hearing, is summarised at paragraphs 8 and 9 above. In essence, the claimant contends that in he was engaged by the respondent as an apprentice roofer on a “framework agreement” and that in the light of the respondent’s failure to comply with the relevant statutory requirements he was by default engaged by the respondent on a two-year common-law apprenticeship which accordingly entitled him to damages for breach of contract. In essence, the respondent’s case is that the claimant was employed as an Approved English Apprentice in respect of which a relevant standard was in place, that the respondent met the relevant statutory requirements for such an apprenticeship which was therefore a contract of service terminable on one week’s notice (which was paid in lieu). The respondent further denies that the claimant was engaged on a common law contract of apprenticeship and contends that, even if that was the case, it was, in any event, entitled to terminate such contract in the light of the claimant’s fundamental lack of capability for the role/ his conduct. Was the claimant employed on an Approved English Apprenticeship[77]The Tribunal has considered first whether the claimant was employed by the respondent on an Approved English Apprenticeship as contended by the respondent. After giving the matter careful consideration, the Tribunal is not satisfied having regard to the facts and the relevant law, that the claimant was employed on an Approved English Apprenticeship.[78]When reaching such conclusion, the Tribunal has taken into account in particular the following: -78.1 The contractual arrangements between the parties are as recorded at paragraphs 18 – 20 above. In summary, the parties: -(a) initially reached an oral agreement in October 2019 on the terms set out at paragraph 18 and, on the basis of which, the claimant joined the respondent as an apprentice roofer and(b) which was supplemented by a written Apprenticeship Agreement on the terms at paragraphs 19 – 20 (page 57) which was signed by the parties on or after 25 November 2019. The Apprenticeship Agreement expressly states that the claimant was engaged on a roofing framework with a start date of 25 November 2019 with an expected completion date of 31 October 2021 and is further stated to be regulated by the 2009 Act and the 2012 Regulations.78.2 The Tribunal is satisfied on the facts of this case, that notwithstanding that the Institute of Apprenticeships states on its website that a roofing standard had been delivered for delivery on 30 September 2019, the claimant was, at all relevant times, nevertheless engaged on a roofing framework. Notwithstanding that the claimant did not commence his course at the South Devon College until 25 November 2019, he was enrolled on and participated at all relevant times on the framework course at the College which had commenced in September 2019. The Tribunal is also satisfied on the facts that a framework course operates in a different manner to a standard course involving in particular a different form of assessment (paragraph 24 above).78.3 Further, and in any event, in order to constitute an Approved English Apprenticeship, the apprenticeship agreement has to comply with the relevant provisions of the 2009 Act and the 2017 Regulations. The Tribunal is not however satisfied on the facts of this case, that the agreement between the parties complied with the requirements of the 2009 Act as section A1 (3) requires not only that a relevant standard has been published (section A1 (3) (a)) but also section A1 (3) (b) provides for the “apprentice to receive training in order to assist the apprentice to achieve the approved standard in the work done under the agreement”. This is not the position in this case as (regardless of whether a relevant roofing standard was in place at the relevant time) :- (a) the Apprenticeship Agreement expressly states that the claimant is engaged on a Roofing Framework (not a standard) (paragraphs 19 -20 and page 57 of the bundle) and further (b) at all relevant times, the claimant receiving training from the College in accordance with the L2 Roofing Framework (paragraph 24 above) rather than, “ to achieve the approved standard” referred to in the 2009 Act.[79]The Tribunal is therefore not satisfied that the respondent has complied with the requirements of section A 1 (3) of the 2009 Act. In all the circumstances, the Tribunal is accordingly not satisfied that the claimant was engaged on an “Approved English Apprenticeship”.[80]The respondent did not contend that if the agreement did not constitute an Approved English Apprenticeship, it could nevertheless still qualify as a statutory apprenticeship for the purposes of the 2012 Regulations. For the avoidance of doubt, the Tribunal is however, satisfied that the respondent could not, in any event, have relied on the 2012 Regulations for such purposes including as Regulation 2 of the 2012 Regulations requires the employer to provide the apprentice with a written statement of particulars of employment for the purposes of section 1 of the 1996 Act and/or to provide a written document providing such information - neither of which were provided in this case. Common Law contract of apprenticeship and associated matters[81]The Tribunal has therefore gone on to consider whether, for the purposes of the claimant’s contractual claim for wrongful dismissal, the claimant’s contract was a common law contract of apprenticeship or a contract of service. The claimant contends that in the light of the respondent’s failure to comply with the statutory provisions of the 2009 Act/ the provisions of the 2012 Regulations, the agreement was a common law contract of apprenticeship for 2 years. The respondent denies that it was a common law contract of apprenticeship and says that it was a contract of service terminable on one week’s notice.[82]When considering this issue, the Tribunal had has reminded itself in particular of the following: -82.1 The guidance of the Court of Appeal in Dunk v Waller that a contract of apprenticeship secures three things for an apprentice in summary: -(a) a monetary payment during the period of apprenticeship(b) that he/ she should be instructed and trained and thereby acquire skills which would be of value to him/ her for the rest of his/her life and(c) gives him/her status in the labour market.82.2 The further guidance contained in Wallace v CA Roofing Services including that: - (a) the primary purpose of a common law contract of apprenticeship is training and that the execution of work for the employer is secondary and (b) ordinarily a contract of apprenticeship would be for a fixed term which could only be terminated (in the context of redundancy) if the employer’s business ceased as a going concern or changed so fundamentally that the apprentice could no longer be taught the trade.82.3 Similarly, a contract of apprenticeship could only be terminated for conduct/ capability in exceptional circumstances including where the claimant was thereby considered as untrainable.82.4 There is nothing in the 2009 Act and/or the 2012 Regulations and /or the 2017 Regulations which provides for an Apprenticeship Agreement to default to a common law apprenticeship contract if an Apprenticeship Agreement fails to comply with the relevant statutory provisions.[83]Having given the matter careful consideration, the Tribunal is not satisfied on the facts of this case that the claimant was engaged with the respondent on a common law contract of apprenticeship.[84]When reaching this conclusion, the Tribunal has taken into account that the claimant was taken on by the respondent in a trade for financial reward as what was described as an Apprentice roofer (paragraph 18), that the parties subsequently entered into what was described as an “Apprenticeship Agreement” under the auspices of South Devon College and the 2012 Regulations for an L2 Roofing Framework with a start date of 25 November 2019, and estimated completion date of 31 October 2021 (page 57 of the bundle) together with the provision of 742 off the job training hours (paragraphs 19 and 20 and page 57 of the bundle).[85]The Tribunal has however weighed against such factors that: -85.1 It was agreed between the parties at the outset of the relationship that the claimant’s employment would be terminable on one week’s notice during the first two years’ of his employment (paragraph 18).85.2 In the Apprenticeship Agreement which was signed between the parties on or after 25 November 2019, it was agreed that the apprenticeship was to be treated as a contract of service and not a contract of apprenticeship (paragraphs 19 and 20 and page 57 of the bundle).85.3 On the facts, training was very much a subsidiary element of the arrangement between the parties. When reaching this conclusion, the Tribunal has taken into account in particular, that :-(a) neither party entered into the Combined Commitment Statement & ILP prepared by South Devon College regarding training and associated matters ( paragraph 21 and pages 58 -61 of the bundle)(b) the claimant only undertook 3 x 5 day periods of off the job training during the course of his employment with the respondent ( paragraph 24) and(c) the Tribunal was satisfied on the evidence (including the claimant’s own contentions) that the claimant’s role was to provide general unskilled support to the respondent together with labouring and cleaning and that the claimant received minimal on the job training (also paragraph 24).[86]In all the circumstances, the Tribunal is not satisfied that the claimant was engaged on a common law contract of apprenticeship.[87]In the event that the Tribunal had found that the claimant had been engaged on a common law contract of apprenticeship, the Tribunal is not satisfied that the respondent’s concerns relating to the claimant’s conduct / capability as identified at paragraphs 25,26, 27, 32, 33 and 37) were, viewed objectively, sufficiently serious to have entitled the respondent lawfully to have terminated any such common law contract of apprenticeship.[88]Finally, the Tribunal has considered whether the claimant’s contract of service was for a fixed 2 year period (as contended by the claimant) or terminable on one week’s notice (as contended by the respondent). The Tribunal is satisfied on the facts, that notwithstanding that the Apprenticeship Agreement contained an “Estimated completion of learning date” of 31 October 2021 (page 57), the claimant’s contract of service was terminable on one week’s notice in accordance with the oral agreement reached between the parties at the commencement of the claimant’s employment (paragraph 18). Moreover, the Tribunal is also satisfied that the claimant received payment in lieu of such notice upon the termination of his employment with the respondent ( paragraph 38 above).[89]The contractual claim for breach of contract is therefore also dismissed.[1]The claimant applied for a reconsideration of (part) of the reserved judgment with reasons dated 23 March 2022 which was sent to the parties on 4 April 2022 (“the Judgment”). In the Judgment the Tribunal dismissed all of the claimant’s claims including the claimant’s claim for breach of contract (as the Tribunal held that the claimant was employed on a contract of service terminable on one week’s notice for which he had received payment rather than on a common law contract of apprenticeship).[2]The grounds for the claimant’s application are set out in an email and attachments dated 6 April 2022 which were received by the Tribunal on that date (“the reconsideration application”). In summary, the claimant stated that it related in particular to the claimant’s breach of contract claim in respect of which he raised four areas for reconsideration namely :-(1) in respect of the Tribunal’s finding of facts relating to the claimant’s entitlement to notice(2) that, notwithstanding the oral evidence of the parties, they had in fact signed/ entered into the Combined Commitment Statement &ILP (“the signed Commitment Statement”) – the claimant sought to rely on a signed copy of the Commitment Statement provided by South Devon College (“the College”) following the issue of the Judgment, which signed copy had not previously been before the Tribunal(3) in the light of the respondent’s failure to comply with the provisions of the Apprenticeships (Form of Apprenticeship Agreement) Regulations 2012 (“the 2012 Regulations”) the claimant’s contract defaulted to a common law apprenticeship contract/ the claimant was, in any event, engaged on a common law apprenticeship contract and(4) the alleged bias of the Employment Judge including in particular with regard to the alleged refusal to allow the claimant properly to pursue his case regarding the applicability of the 2012 Regulations/ the consequences of the respondent’s failure to comply with the provisions thereof.[3]The Tribunal understands that the claimant is also pursuing an appeal to the Employment Appeal Tribunal on similar grounds.[4]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure (“the Rules”) which include at Rules 70 – 73, the rules relating to reconsideration. Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The written reasons were sent to the parties on 4 April 2022 and the reconsideration application was received by the Tribunal on 6 April 2022. The reconsideration application was therefore received within the relevant time limit. Position regarding the reconsideration application to date[5]The Tribunal wrote to the parties on 28 April 2022. In the accompanying letter dated 26 April 2022 (“the letter dated 26 April 2022”) the Tribunal dismissed the claimant’s reconsideration application for the reasons set out in that letter, save in respect of the matters referred to below relating to the signed Commitment Statement. A copy of the letter dated 26 April is attached to this judgment.[6]The Tribunal stated in the letter dated 26 April 2022, its provisional view that the signed Commitment Statement should be admitted in evidence as a relevant contemporaneous document. The respondent was invited to confirm whether he now accepted that the document had been entered into / signed by him. The respondent was further asked to comment on whether the signed Commitment Statement should be admitted in evidence and the effect (if any) of the signed Commitment Statement (if admitted) on the Tribunal’s findings of fact at paragraph 85.3 of the Judgment regarding its status and the subsequent conclusion at paragraph 86 of the Judgment that the claimant was not engaged on a common law contract of apprenticeship.[7]The respondent responded by an email dated 10 May 2022. In summary, the respondent :-(a) accepted that the Commitment Statement was signed by the respondent on 25 November 2019(b) stated that the respondent did not have any recollection of signing the Commitment Statement/ regarded it as a formality of the enrolment process(c) accepted that the signed Commitment Statement was a relevant document which should be admitted in evidence and(d) contended that the contents of the signed Commitment Statement was not however reflective of the true relationship between the parties which had already been established on the basis of an oral agreement and working relationship which had continued as previously following the claimant’s enrolment which was at all times a contract of service terminable on one week’s notice.[8]On 7 June 2022, the Tribunal wrote to the parties advising them that having considered the recent correspondence, in which it was accepted that the Combined Commitment Statement had been signed by both parties, that it was a relevant document, and that the respondent did not object to its admission, the Tribunal was satisfied that it was in the interests of justice to admit the document and to amend paragraphs 21 and 85.3 of the Judgment accordingly.[9]The Tribunal also advised the parties that as it was stated at paragraph 85.3 of the Judgment that one of the matters which it had taken into account when deciding that the claimant was not engaged on a common law contract of apprenticeship was that neither party had entered into the signed Commitment Statement, it was appropriate to consider the effect, if any, of the admission of the signed Commitment Statement on such finding and that this matter should accordingly, be determined further by the Tribunal.[10]The parties were further advised that the deliberations of the Tribunal would be strictly limited to the issue identified at paragraph 9 above as the Tribunal had already addressed and dismissed the remaining aspects of the claimant’s reconsideration application (in the letter dated 26 April 2022). The parties were given the choice of having the matter determined by way of an oral reconsideration hearing or, if both consented, by way of written submissions.[11]The claimant initially requested an oral reconsideration hearing but both parties subsequently consented to the matter being determined by way of written submissions. The Tribunal gave directions for the exchange of written submissions and (any) replies together with associated directions. The claimant’s written submissions dated 11 July 2022[12]The claimant’s written submissions are dated 11 July 2022. In brief summary, the claimant contended that:-(a) the College had provided evidence that the claimant was engaged on a Roofing Apprenticeship (Framework) and that the signed Commitment Statement was signed by all parties(b) the signed Commitment Statement is explicit – the duration is for 2 years from the start of the apprenticeship, the main focus of the apprenticeship is on learning which requires the respondent to provide 20% of total hours as off the job training(c) the signed Commitment Statement is a contract as outlined at page two of the document which supersedes any previous employment agreement or conditions(d) the claimant believed that the one week notice period applied until his formal apprenticeship commenced and he did not know any different as a contract of employment/ terms and conditions were never provided by the respondent and the verbal discussion prior to the commencement of the employment were ambiguous(e) the fact that respondent failed to digest the nature of and adhere to the employer responsibilities contained in the signed Commitment Statement should not be to the detriment of the claimant(f) the signed Commitment Statement which contains details of responsibilities, evidence that a new contract was in place between the parties(g)section 32 of the Apprenticeships Skills, Children and Learning Act 2009 (“the 2009 Act”) set out the prescribed requirements for an statutory apprenticeship agreement including the requirement to provide a contract of employment/ written particulars of employment which was never provided by the respondent and(h) in summary – the signed Commitment Statement was a signed contract between the parties which superseded any previous agreements and which was breached by the respondent. Further, the respondent failed to comply with the provisions of the 2009 Act and the claimant’s contract should therefore be treated as a contract of apprenticeship pursuant to section A5 of the 2009 Act. The respondent’s submissions dated 11 July 2022[13]The respondent’s submissions are also dated 11 July 2022. In brief summary, the respondent contended that :-(a) the signed Commitment Statement did not have any effect on the Tribunal’s finding that the claimant was not engaged on a common law apprenticeship(b) the signed Commitment Statement did not change the evidence that the claimant gave during the hearing namely, that he accepted that it was his understanding throughout his employment that the agreement was that his employment could be terminated on one week’s notice (b) the intentions and understanding of the parties should be given greater weight than the a document which was signed one month after the employment relationship was established, which was never explained to the respondent and following which there was no further discussions regarding the terms of employment/ any change to the employment relationship(c) the Apprenticeship Agreement at page 57 of the bundle (which was signed by both parties) states that the apprenticeship was to be treated as a contract of service not as a contract of apprenticeship – both parties understood that this was not a contract of apprenticeship and that there was no fixed two year period ( and which is further supported by the comments recorded at paragraph 32 of the Judgment) and(d) the bundle of new documentation provided by the claimant after the issue of the Judgment included a checklist which states that the claimant was on a standard rather than a framework – such inconsistencies decreased the weight which should be placed on the signed Commitment Statement. The claimant’s response dated 18 July 2022[14]The claimant provided a response to the respondent’s written submissions on 18 July 2022. In brief summary, the claimant: -(a) further relied on the funding arrangements/ rules of the Education & Skills Funding Agency for apprenticeship funding and associated statutory requirements(b) contended that it was the express intention of the respondent that the claimant would be on an apprenticeship. However, as the respondent did not comply with the statutory requirements, he was not employed on an Approved English Apprenticeship and is therefore to be treated as being on a contract of apprenticeship pursuant to section A5 of the 2009 Act and(c) the one week’s notice period was invalidated after the respondent enrolled the claimant on a government approved apprenticeship scheme and the signed Commitment Statement was agreed. The respondent’s response dated 15 July 2022[15]The respondent provided a response to the claimant’s written submissions on 15 July 2022. In brief summary, the respondent contended as follows: -(a) the conclusions of the Tribunal are not affected by the signed Commitment Statement(b) the signed Statement is not a signed contract of employment and does not set out notice periods and other employment particulars(c) it is clear from the Apprentice Agreement that the signed Commitment Statement does not supersede the terms of employment between employer and employee. Further it states on the face of the document that the contract is to be treated as a contract of service not a contract of apprenticeship(d) the Apprenticeship Agreement has an estimated completion of learning date which is reflected in the signed Commitment Statement(e) the duration of 2 years as set out in the signed Commitment Statement is for the apprenticeship and is not the length of time that the claimant must be employed by the respondent – it does not reflect an agreement by the respondent to employ the claimant for a fixed two year period(f) the signed Combined Commitment Statement is a commitment statement rather than a contract of employment for a fixed term – it does not state that it is a contract of employment or that it replaces any existing employment particulars(g) the claimant’s position regarding the agreement as to notice has changed since the hearing. The discussion between the parties regarding notice was not ambiguous or contentious as now contended by the claimant as they both agreed in evidence that the notice period was one week. The claimant was clear in his evidence that the notice period was one week – he did not contend that the oneweek notice applied whilst he was on probation(h) The claimant further stated in his evidence that he did not recall a fixed term of employment(i) the signed Commitment Statement did not contain a fixed term of employment or contain any employment particulars. Further the document did not replace the term of the existing employment contract which were verbally agreed between the parties at the commencement of the employment relationship(j) Section A5 of the 2009 Act applies to Approved English Apprenticeships which are governed by the 2017 Regulations which do not apply to old-style apprenticeship agreement. The 2009 Act does not, in any event, state that if there is a breach of its provisions the apprentice will be treated as if they were on a contract of apprenticeship. The signed Commitment Statement and associated documents[16]The claimant submitted with the reconsideration application an undated email from the College to which was attached scanned signed copies of the claimant’s enrolment form, apprenticeship agreement and the signed Commitment Statement. The College stated in the email that the signed Commitment Statement was not in the correct order in the original file and that it was therefore sending the above documents in the correct order for ease of use.[17]The documents forwarded by the College comprised of :-(a) “a sign - up checklist” (signed by the Workplace Coordinator and LIS Administrator on 16 December 2020 and 13 January 2021) which listed the documents and assessments completed and on which it also records the apprentice start date of 25 November 2019 with an expected end date of 31 October 2021(b) a College Enrolment form signed by the claimant and the College tutor on 25 November 2019(c) the Apprenticeship Agreement dated 25 November 2019 (as set out at paragraphs 19- 20 of the Judgment) and(d) the signed Commitment Statement (as previously summarised at paragraph 21 of the Judgment) which records that it was signed by the claimant, the respondent and the College on 25 November 2019.[18]Having reviewed the signed Commitment Statement further for the purposes of the reconsideration application, the Tribunal has reminded itself that it :-(a) states that the claimant was engaged on a Framework Roofing for a duration of 2 years starting on 25 November 2019 and ending on 31 October 2021(b) confirms that a contract of employment was in place(c) sets out further details of the 20% off the job commitment for training and(d) sets out the respective responsibilities of the parties including the respondent’s responsibilities to ensure that the claimant had a contract of employment, was allowed time off during the working week for College study and to provide the claimant with an opportunity to learn specific skills to aid him in achieving his programme of study and to support the claimant to achieve his learning objectives. THE LAW AND CONCLUSIONS OF THE TRIBUNAL THE LAW[19]The Tribunal has had regard in particular to: -19.1 Rules 70 -73 of the Rules referred to above including, that the grounds for reconsideration are limited to those set out in Rule 70, namely that it is necessary in the interests of justice to do so. The interests of justice apply to both parties.19.2 The legal provisions, authorities and guidance referred to at paragraphs 41 and 82 of the Judgment. The parties did not rely on any legal authorities in the submissions referred to above. When determining the reconsideration application, the Tribunal however considered that it was appropriate to have regard to the further legal authorities and guidance contained in Flett v Matheson 2006 ICR 673 CA and Chassis and Cab Specialists Ltd v Lee EAT 0268/10 EAT in the light of the admission of the signed Commitment Statement and the dispute between the parties regarding the nature of and legal effect of that document. The Tribunal accordingly wrote to the parties to draw these authorities to their attention and gave them an opportunity to make further representations on the effect (if any) of such authorities before completing its reconsideration judgment. Their additional representations are summarised at paragraphs 19.6 – 19.9 below.19.3 The findings of the Tribunal at paragraphs 82 – 87 of the Judgment.19.4 The contents of the reconsideration application together with the submissions and responses of the claimant and the respondent referred to above.19.5 The parties provided further written representations on the effect of the authorities of Flett v Matheson and Chassis v Lee as follows: - The further submissions of the claimant19.6 The claimant provided two further, brief, written submissions dated 9 August 2022 and 5 September 2022. In summary, the claimant :-(a) indicated that he wished to rely on the authorities referred to above in support of his claim(b) reiterated his reliance on the evidence relating to the training arrangements/ the signed Commitment Statement which had previously been provided to respondent as part of the claimant’s disclosure and which were a legal requirement to enable the respondent to claim his funding from the government scheme and(c) reiterated its previous contention that the respondent’s failure to comply with his statutory obligations meant that the claimant’s contract of apprenticeship defaulted to a common law contract of apprenticeship which was breached by the respondent. The further contentions of the respondent19.7 The respondent provided further detailed written submissions dated 2 September 2022 (which were submitted to the Tribunal on 5 September 2022) which in summary contended as follows: -19.8 In respect of Flett v Matheson (“Flett”) The respondent contended/ relied in particular on the following:-19.8.1 It is a 2006 case, with neutral judicial treatment, which predated the 2009 Act and the outcome of which was to remit the matter back to the Tribunal for further findings of fact. It is not of assistance in this case as each case turns on its own facts.19.8.2 Although it is recorded in Flett that the appellant entered into a tripartite individual learning plan(“ILP”), as is accepted is the situation in this case, there are otherwise significant differences between the cases including :- (a) that there was no history of previous apprenticeships in the present case (b) the information contained in the ILP is more limited than in Flett , including as it does not identify the key skills/ detailed training scheme to be achieved, details of the on the job training section (and no log books were completed) and (c) there was no confirmation by the respondent that the ILP was acceptable to him.19.8.3 The consideration at paragraphs 28 to 29 of Flett of the authorities on contracts of apprenticeship (including by reference to the analysis in Wallace v CA Roofing Services Ltd [ 1996] IRLR 435) in reliance of which the respondent contended that it was specifically stated in the signed Commitment Statement that the contract was to be treated as a contract of service not a contract of apprenticeship (with the associated identified limitations on termination) which demonstrated that contract of apprenticeship was not within the contemplation of the parties.19.8.4 Paragraph 32 of Flett which, in turn, referred to the judgment in Whitely v Marton Electricial Ltd [2003] ICR 495 (paragraph 9), in which it stated that in a contract of apprenticeship an employer undertook much wider responsibilities than towards an ordinary employee in return for advantages. The respondent also relied on the statement at paragraph 33 of Flett that if someone is paid less than the minimum wage it points to the agreement being one of apprenticeship. The respondent contended that neither of the above applied in this case including as:- (a) the Tribunal held at paragraph 23 of the Judgment that the claimant’s role was to provide general unskilled support as a roofer’s mate and (b) that the Tribunal held at paragraph 18 of the Judgment that the claimant was paid £5 per hour which it contended is more than the current minimum wage for apprentices and those under the age of 18.19.8.5 Paragraph 38 of Flett in reliance on which the respondent contends :- (a) that the Tribunal is required to construe the extent of the obligations under the ILP by reference to the particular agreement and not to rely on the label alone and (b) although the words apprentice and apprenticeship are included in the ILP a contract of apprenticeship was expressly excluded and the specific work required to be undertaken with the respondent was never specified.19.8.6 Paragraphs 39-41 of Flett with the distinguishing factors such as the applicability of the JIB scheme and restrictions on termination which contrasted with the present case were there was no such restrictions- only an oral contract providing for termination on one week’s notice.19.8.7 The respondent endorsed paragraph 85 and 86 of the Judgment and reminded the Tribunal that the cases of Dunk v Waller [ 1970] 2 QB 163 and Wallace v CA Roofing were considered by it when concluding that there was no common law contract of apprenticeship.19.9 In respect of Chassis v Cab Specialists (“Chassis”) the respondent contended in particular as follows: -19.9.1 In the present case the claimant responded to a facebook post and there was no publication stating what was expected of the respondent unlike in Chassis (or Flett).19.9.2 The agreement in Chassis imposed strict expectations on the employer including an intention that the trainee would be employed for the whole duration of the apprenticeship and a commitment by the employer to use its best endeavours to secure alternative employment if employment could not be offered on completion of training/ in the event of redundancy. In this case however, there is no such detailed contract, commitment to employ for a fixed term or to find alternative employment for the claimant.19.9.3 In the Chassis case, the claimant underwent on the job training which was reviewed by the assessor which organised the apprenticeship and entered into the agreement with the respondent. However, in the case of the claimant his role was to provided general unskilled support and he received minimal on the job training (paragraph 85.3 of the Judgment).19.9.4 The EAT concluded at paragraph 21 of Chassis, having reviewed the agreements between the parties, that the claimant was engaged on a contract of apprenticeship which was consistent with the restrictive nature of what the employer could/ could not do in relation to the claimant. This was not the position in the present case where the contract was described as one of service and no strict conditions were imposed by the College, or any external organisation, regarding employment matters.19.9.5 It states at the last paragraph 23 of Chassis that “What matters is the substantial character of the relationship”. The Tribunal is reminded of its findings at paragraph 82 to 86 of Judgment, following its analysis of the relationship, that it was not satisfied that the claimant was engaged on a common law contract of apprenticeship.19.9.6 Finally, the factual matrices of Flett and Chassis are different to the present case. Further, each case turns on its own facts, and having analysed the facts the Tribunal concluded in the Judgment that it was not a common law contract of apprenticeship which conclusion should not be interfered with. THE CONCLUSIONS OF THE TRIBUNAL Background[20]The Tribunal has reminded itself of the statutory provisions referred to at paragraphs 41.5 – 41.9 of the Judgment including, as a starting point: -20.1 The statutory definition of an employee and contract of employment for the purposes of 230(1) and(2) of the Employment Rights Act 1996 (“the Act”).20.2 That a purported statutory apprenticeship agreement which does not comply with the requirements contained in Sections 32 of the 2009 Act and the Apprenticeships (Form of Apprenticeship Agreement) Regulations 2012 (“the 2012 Regulations”)(which are the relevant provisions in this case as the Tribunal held that the claimant was engaged on/ was working towards a Roofing Framework rather than a Roofing Standard) does not engage the provisions of section 35 (2) of the 2009 Act whereby a statutorily compliant agreement is deemed to be a contract of service.20.3 Section 35 of the 2009 Act and/or the 2012 Regulations do not however, provide for a non – compliant statutory apprenticeship agreement (as is the position in this case) automatically to default in such circumstances to a common law contract of apprenticeship (paragraph 82.4 of the Judgment and section 35 (1) of the 2009 Act). In such circumstances, the Tribunal was therefore required to determine for the purposes of the Judgment the status of the contract, namely, whether the claimant was employed on a contract of service (as contended by the respondent) or engaged on a common law contract of apprenticeship (as contended by the claimant).[21]When determining for the purposes of the Judgment, whether the claimant was engaged on a common law contract of apprenticeship the Tribunal had regard to the authorities of Dunk v George Waller (erroneously referred to as Wallace in the Judgment) & Son Limited 1970 2QB, 163, CA and Wallace v CA Roofing Services Limited 1996 IRLR 435 QBD as referred to at paragraph 41.10 of the Judgment together with the associated guidance summarised at paragraphs 82.1 – 82.3 of the Judgment.[22]The Tribunal accepted at paragraph 84 of the Judgment that, for the purposes of the above mentioned authorities, :-(a) the claimant was taken on by the respondent in a trade for financial reward as what was described as an Apprentice Roofer(b) the parties subsequently entered into what was described as an “ Apprenticeship Agreement” under the auspices of the College and the 2012 Regulations for a L12 Framework and(c) that the Framework had a start date of 25 November 2019 and an estimated completion date of 31 October 2021 with the provision of 742 off the job training hours.[23]The Tribunal however weighed against the above, the factors set out at paragraph 85 of the Judgment which included that neither party had entered into the signed Commitment Statement (with its training and associated commitments) and concluded on balance, that the claimant was employed on a contract of service rather than engaged on a common law apprenticeship.[24]As stated at paragraph 19.2 above, the Tribunal has also had regard for the purposes of the reconsideration application to the further authorities of Flett and Chassis as the Tribunal considers that they are of relevance following the admission of the signed Commitment Statement with its stated training obligations. The Tribunal rejects the contentions of the respondent that they are of limited relevance as they are distinguishable on the facts, as it is satisfied that they provide useful guidance including in particular with regard to the effect of the training overlay.[25]The Tribunal has noted in particular that the Court of Appeal in Flett identified three key matters which the Tribunal considers are of relevance in this case following the admission of the signed Commitment Statement namely :-(a) whilst the label attached to the arrangement is of relevance it is necessary to construe the terms of the agreement and not to rely on the label alone(b) whether the existing contract should be treated as “varied or overlaid by the tripartite training arrangements” and(c) whether the employer may have obligations to employ the employee for the contemplated period of the “apprenticeship”. The Tribunal’s conclusions regarding the period prior to 25 November 2019[26]The Tribunal has reviewed first the contractual position prior to 25 November 2019 (the date upon which the parties entered into the Apprenticeship Agreement and the (tripartite) signed Commitment Statement). The Tribunal is satisfied that the position prior to 25 November 2019 continues to be as recorded at paragraph 18 of the Judgment including that it was orally agreed between the parties that the claimant would be employed as an apprentice roofer, that he was paid at the rate of £5 per hour and that he would be entitled to one week’s notice to terminate his employment. Further, during this period the claimant was utilised by the respondent as an unskilled labourer (paragraph 23 of the Judgment)[27]Further, for the reasons previously explained in the letter dated 26 April 2022, the Tribunal rejects the contentions of the claimant that there was any agreement between the parties that the one week’s notice provision would only apply during the claimant’s probationary period/ that there was any express agreement between the parties that the agreed notice provision would only apply until they entered into a formal apprenticeship agreement.[28]In all the circumstances, the Tribunal remains satisfied that although the claimant was described as an apprentice roofer, he was in fact employed by the respondent as an unskilled employee on a contract of service, which was terminable by the respondent on one week’s notice, during the period between 21 October 2019 and 25 November 2019. The effect (if any) of the signed Commitment Statement on the period on and after 25 November 2019[29]The Tribunal has therefore gone on to consider the effect (if any) of the newly admitted signed Commitment Statement on the claimant’s contractual status on or after 25 November 2019. The Tribunal has considered the signed Commitment Statement in conjunction with the Apprenticeship Agreement which was also entered into by the parties on 25 November 2019 (“the Apprenticeship Agreement”) (paragraphs 19 and 20 of the Judgment).[30]The Tribunal has, as a starting point, considered the matter in accordance with the Court of Appeal guidance in Dunk v Waller, as applied at paragraph 84 of the Judgment, and in respect of which the Tribunal has previously concluded that the claimant was taken on by the respondent in a trade (roofing) for financial reward as an apprentice roofer and that the parties subsequently entered into the Apprenticeship Agreement under the auspices of the College for an L2 Roofing Framework as further referred to in that paragraph. The claimant was therefore engaged on a training programme to secure a qualification in a recognised trade (roofing).[31]The Tribunal has therefore gone on to consider whether the contractual position has changed in anyway, in the light of the admission of the signed Commitment Statement/ the approach adopted, in particular, in Flett.[32]In essence the claimant’s position is that :-(a) even if the existing contractual arrangements did not automatically default to a contract of apprenticeship in the light of the respondent’s failure to comply with the legal requirements relating to statutory apprenticeships, they were, in any event, overridden by the Signed Commitment Statement which imposed a two year training contract during which the respondent agreed to provide/ facilitate the claimant with relevant on and off the job training to enable him to complete his apprenticeship as a roofer(b) in pursuance of such arrangements the respondent benefitted from statutory funding and paid the claimant at a reduced minimum wage as apprentice in recognition of such status and(c) the fact that the respondent failed to comply with the training obligations contained in the signed Commitment Statement should not prejudice the claimant.[33]In essence, the respondent :-(a) contends that the signed Commitment Statement is a commitment statement not a contract(b) contends that it is clear from the Apprenticeship Agreement that the contract is one of service rather than apprenticeship and that the existing contractual arrangements including the respondent’s right to terminate the contract on one week’s notice continued to apply (d) denies that the signed Commitment Statement gave rise to any obligation on the part of the respondent to employ the claimant for a fixed period of two years which was the duration of the apprenticeship not the employment .[34]The Tribunal has also given careful consideration to the further written submissions which it has recently received from the parties relating to the Judgments of Flett/ Chassis as set out in detail at paragraphs 19.6 – 19.9 above. Does the signed Commitment Statement effect the contractual position for the period on or after 25 November 2019[35]The Tribunal’s position regarding the contractual position prior to 25 November 2019 is as stated at paragraphs 26- 28 above. The Tribunal has therefore gone on to consider whether in the light of Flett the onset of the Apprenticeship Agreement / signed Commitment Statement imposed their own terms including as to duration or terminability such as to supplement or override the position in the original contract.[36]Having given the matter careful consideration, the Tribunal is satisfied that the combined effect of the Apprenticeship Agreement and the signed Commitment Statement was to supplement/ override the existing contractual commitments of the parties regarding training and termination in the following ways: -30.1 With regard to the nature of the training obligations placed upon the respondent as contained in the signed Commitment Statement including, in particular, the agreement of the respondent henceforth to :-(a) allow the claimant paid time off to attend his Roofing course at the College (the 20% (742 hour) off the job commitment)(b) provide the claimant with the opportunity to learn skills to aid him in achieving/ which were relevant to his apprenticeship programme and(c) to support the claimant to achieve his learning objectives (page 60 of the hearing bundle).30.2 With regard to termination of the contract, the combined effect of the Apprenticeship Agreement and the signed Commitment Statement was to create an objectively ascertainable agreed end date for the period of training of 31 October 2021 as identified in the Apprenticeship Agreement (which gave an estimated completion of learning date of 31 October 2021 - at page 57 of the bundle) and the signed Commitment Statement ( in which it was stated that the Apprenticeship Framework in Roofing was for a period of two years starting on 25 November 2019 and ending on 31 October 2021 -at page 58 of the bundle).30.3 The Tribunal is further satisfied that in the light of Flett, the objectively ascertainable agreed end date of 31 October 2021 overrode the original oral agreement between the parties whereby the respondent was previously entitled to terminate the claimant’s contract on one week’s notice. Further there is no suggestion in this case that there was any subsequent discussion/ agreement between the parties regarding the question of termination including that the respondent issued the claimant at that time with any other contractual documentation entitling him to terminate the arrangement on notice.[37]Further, the Tribunal rejects the contention of the respondent that the signed Commitment Statement did not have contractual effect. The Tribunal is satisfied that, notwithstanding that the signed Commitment Statement is described as a commitment statement, the obligations contained therein were of contractual effect including, as the respondent was able to procure the government grants identified at paragraph 22 of the Judgment in consideration for such training commitments.[38]The Tribunal has therefore gone on to consider whether, in the light of all the above, it continues to be satisfied that the claimant was engaged on a contract of service rather than on a common law contract of apprenticeship.[39]Having given the matter careful consideration, the Tribunal is satisfied, in the light of the contents of the signed Commitment Statement and the Tribunal’s associated findings referred to above, that, viewed objectively, it shifts the balance in the favour of the claimant to a finding that the claimant was engaged by the respondent on a common law contract of apprenticeship (rather than on a contract of service) with effect from 25 November 2019 and that it is in the interests of justice to revoke and vary the Judgment accordingly.[40]When reaching such conclusion, the Tribunal has reminded itself of the factors identified at paragraph 85 of the Judgment which it identified as weighing against the claimant being engaged on a common law contract of apprenticeship, in summary :-(a) the oral agreement of the parties for termination of the claimant’s contract on one week’s notice(b) that it was stated in the Apprenticeship Agreement that it was agreed that the claimant’s apprenticeship was to be treated as a contract of service and not a contract of apprenticeship and(c) on the facts training was very much a subsidiary element of the arrangement. The Tribunal has also taken into the account its previous finding that the claimant was paid (after the completion of his initial trial period) £5 per hour (paragraph 18 of the Judgment) which sum is in excess of the statutory minimum rates otherwise payable to apprentices / employees aged under 18 throughout the relevant period.[41]The Tribunal is however satisfied that, in the light of the admission of the signed Commitment Statement and its associated findings, such factors are no longer determinative for the following reasons: -40.1 The Tribunal has concluded (for the reasons explained above) that the contractual position (including in particular with regard to the key issues of training and the termination of the contract) were varied by the “training overlay” effected by the Signed Commitment Statement and which the Tribunal is satisfied is more important the label attached to the arrangement by the parties.40.2 Further, the Tribunal is satisfied that its findings (at paragraph 23 of the Judgment) that the claimant’s role was in practice to act as a roofer’s mate providing general unskilled support to the respondent/ that the claimant received minimal on the job training should be weighed in the light of :-(a) the identified training obligations placed on the respondent (for on and off the job training) by the Signed Commitment Statement (the purpose of which was to facilitate the claimant to become a qualified roofer in a recognised trade) and(b) that the respondent would otherwise be entitled to rely on his failure to adhere to such training obligations to justify his contentions regarding the claimant’s employment status. Final
CONCLUSIONS
[42]In the light of all of the above, the Tribunal is satisfied on reconsideration, that :-(a) the claimant was engaged by the respondent on a common law contract of apprenticeship from 25 November 2019 with an objectively ascertainable end date of 31 October 2021(b) in such circumstances, the original oral agreement between the parties whereby the respondent was entitled to terminate the claimant’s contract on one week’s notice was superseded accordingly and(c) the respondent was only entitled to terminate the claimant’s contract prior to 31 October 2021 in the limited circumstances identified at paragraphs 82.2 and 82.3 of the Judgment which the Tribunal has previously determined do not apply in this case (at paragraph 87 of the Judgment).[43]Further in all the circumstances, the Tribunal is satisfied that it is in the interests of justice that the the finding of the Tribunal in the Judgment dismissing the claimant’s claim for breach of contract is therefore revoked and substituted with a finding that the claimant was engaged on a common law contract of apprenticeship with effect from 25 November 2019 and that such contract was therefore wrongfully terminated by the respondent in breach of such contract.[44]The matter will be listed in due course for a remedy hearing to determine the award of any damages to the claimant.[1]This is a reserved remedy judgment following a reconsideration Judgment dated 22 September 2022 (which was also issued on that date) (“the reconsideration judgment”). The Tribunal held in the reconsideration judgment, reversing its previous decision in the original liability judgment dated 23 March 2022 and issued on 4 April 2022 (“the liability judgment”), that the claimant was engaged by the respondent on a common law contract of apprenticeship as a roofer from 25 November 2019 with an objectively ascertainable end date of 31 October 2021 and that the contract was wrongfully terminated by the respondent in breach of contract on 17 August 2020.[2]A copy of the liability judgment and of the reconsideration judgment are at pages 1-27 and 34 – 51 respectively of the remedy bundle prepared for this hearing (“the remedy bundle”).[3]This remedy hearing was originally listed for hearing on 16 December 2022. The remedy hearing did not however proceed on that date (following an application by the respondent for a postponement which was not opposed by the claimant and other issues) and the matter was instead the subject of a case management hearing. The associated case management order is at pages 59 – 63 of the remedy bundle (“the CMO dated 19 December 2022”). The claimant was required, pursuant to paragraph 5 of the CMO dated 19 December 2022, to exchange any further documents relevant to remedy including those specifically identified in that paragraph. Documentation[4]The Tribunal was provided with the remedy bundle together with a copy of an email dated 16 December 2021 (which had previously been submitted) providing details of the profit and loss for year ended 2021/ 2022 for the claimant’s business Rapid Roofing together with a payslip relating to the claimant’s employment with the respondent for the pay date 17 March 2020 (together “the remedy bundle”). The remedy bundle contains the helpful written submissions of the parties together with the summary of points of agreement / disagreement which the parties were directed to provide by the CMO dated 19 December 2022.[5]The Tribunal has also had regard to the original bundle which was provided for the liability hearing. Witness statements[6]The claimant and his grandmother, Miss Gabrielle Bassett, submitted witness statements for the purposes of the remedy hearing. The claimant has also given oral evidence to the Tribunal. Miss Bassett did not however attend the remedy hearing or provide any documentary evidence to substantiate her contended payments to the claimant (notwithstanding that paragraph 5 of the CMO dated 19 December 2022 directed that any document – including receipts- relating to the start-up costs of the claimant’s business Rapid Roofing should be provided).[7]The Tribunal has also had regard to the witness statements which were provided to the Tribunal by the parties for the liability hearing.[8]The Tribunal also permitted the claimant’s mother, Ms Vuitton, to give oral evidence to the Tribunal relating to the claimant’s finances/ costs and expenses / the associated documents contained in the remedy bundle including in respect of the costs/ expenses relating to the setting up of the claimant’s business Rapid Roofing/ qualification costs. The Tribunal permitted Ms Vuitton to give such evidence, notwithstanding that she had not submitted a witness statement, as she had dealt with such matters on the claimant’s behalf including in the light of the claimant’s stated condition of autism. THE ISSUES[9]In summary, the claimant seeks the following compensation: -(a) Damages for breach of contract (up to the maximum permitted limit of £25,000) pursuant to the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the 1994 Order”) in respect of the wrongful termination of his common law contract of apprenticeship which terminated on 17 August 2020 (prior to its due end date of 31 October 2021).(b) The claimant seeks in respect of the above :- (a) compensation for loss of earnings to include the pay rise in line with that afforded to the respondent’s apprentice Mr Blight in his second year of apprenticeship (which the claimant contends he would also have received if he had remained with the respondent) (b) the loss of future prospects (limited to 23 February 2023)(c) the set up costs of his business Rapid Roofing(d) the costs to complete his NVQ qualification and(e) interest thereon at 8 per cent. (c) A 25 per cent uplift pursuant to section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) in respect of the respondent’s failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures (“the ACAS Code”) and, (d) 4 weeks’ pay pursuant to section 38 of the Employment Act 2002. for the respondent’s failure to issue a statement of terms and employment as required by section 1 of the Employment Rights Act 1996 (“the 1996 Act”).[10]In summary, the respondent’s position is as follows: -(a) The respondent accepts that the claimant is entitled to be compensated for an amount reflecting a loss of earnings, less mitigation (but not the claimed increase in salary to bring the claimant in line with Mr Blight).(b) The respondent’s position is however, that the claimant’s employment with Watertight Roofing (“Watertight”) and its termination on 15 January 2021 constitutes a break in the chain of causation and that the respondent should not be responsible for any losses following that employment or flowing from it including for loss of earnings, the costs to complete his NVQ qualifications/ the set up costs of Rapid Roofing. The respondent further contends that as the claimant has not provided the ordered evidence (in respect of the Bell Group) he is not, in any event, entitled to pursue any claim for future loss of earnings. Still further, the respondent does not, in any event, agree with the figures which the claimant has given for losses/ mitigation.(c) The respondent accepts that the claimant would be entitled to an award of interest on any compensation awarded for breach of contract pursuant to the 1994 Order but says that the percentage and period is at the Tribunal’s discretion up to a maximum of 8 per cent.(d) The respondent accepts that the claimant is entitled to an ACAS uplift in respect of the respondent’s failure to adhere to the ACAS Code but says that any uplift should be limited to 15 per cent.(e) The respondent also accepts that the claimant is entitled to compensation for the respondent’s failure to provide a statement of terms and particulars but says that it should be limited to two weeks’ pay. THE FINDINGS OF FACT ON REMEDY The liability judgment[11]The Tribunal has had regard to the findings contained in the liability judgment including in particular: -(a) paragraph 15 (relating to the claimant).(b) Paragraphs 17.2/34 (relating to Jacob Blight – including that he was engaged by the respondent as apprentice roofer/ labourer around 20 July 2020 on (after a trial period) a substantive salary of £5 per hour which subsequently rose to £7 per hour).(c) Paragraph 18 (the claimant’s salary was £5 per hour/ that it was accepted by the respondent that he did not confirm the agreed terms of employment in writing).(d) Paragraph 25 (the claimant’s mode of transport to get to work including the initial use by the claimant of a moped because of the lack of availability of public transport/ that the claimant was accompanied by his mother by car when he was learning to drive and that there were a number of occasions when the claimant was late/ not ready for work).(e) Paragraph 28 (the claimant was on furlough leave between 30 March 2020 and 11 May 2020) and,(f) Paragraphs 38 – 39 (when the claimant arrived for work on the morning of 17 August 2020 he discovered his personal possessions at the side of the road, he was told by the respondent that he had been dismissed because he had not improved and, the claimant was paid one week’s pay in lieu of notice. Further, the claimant and his mother subsequently tried unsuccessfully to contact the respondent on a number of occasions to obtain a copy of the respondent’s disciplinary and grievance procedure / a copy of a contract of employment, but the respondent did not respond). The claimant’s payslip[12]The claimant’s pay slip (added as page 109 of the remedy bundle) with the respondent which shows that the claimant was paid £200 gross for 40 hours per week with a net weekly figure of £195.92 (pay date 17 March 2020). Alternative employment[13]Following the termination of his employment with the respondent the claimant understood that he had 4 weeks’ to secure alternative employment in order to be permitted to continue to attend his apprenticeship college course. The Tribunal is satisfied that the formal position with regard to such matters is as confirmed by the South Devon College at page 58 of the remedy bundle. Watertight Roofing[14]The claimant secured alternative employment with Watertight, which the claimant describes as a large roofing company based in Plymouth, with effect from 1 September 2021. The Tribunal has not been provided with any documentary evidence relating to the claimant’s employment with Watertight/ any information from that company. Accordingly, the Tribunal has had limited information to aid its determination of the terms of the claimant’s employment / apprenticeship with Watertight and/ or the reasons for the termination of such employment.[15]The following findings of fact have therefore been made by the Tribunal, on the balance of probabilities, having considered the claimant’s witness statements (prepared for the liability and remedy hearings) and oral evidence.[16]The claimant was employed by Watertight as an Apprentice Roofer with effect from1 September 2021 on an initial probationary period of one month. A contract of employment was issued together with a disciplinary/ grievance procedure and “the 3- way agreement signed (LSC).” The Tribunal understands the final document to be a tripartite training agreement made between the claimant, Watertight and South Devon College, as in the claimant’s previous employment with the respondent, and as further described at paragraph 21 of the liability judgment and paragraph 18 of the reconsideration judgment.[17]The terms and conditions of the claimant’s employment required him to attend for work at 8am at Watertight’s main base in Plymouth which was approximately 12 miles from his home. The claimant was initially assigned to a team who lived locally to the depot and who had the use of a work’s van which was returned to the depot at the end of the working day. At this time the claimant, who was continuing to learn to drive, was assisted by his mother to get to and from work because of limited available public transport. The claimant has not however contended that he experienced any difficulties meeting the requirement to attend at Watertight’s base in Plymouth by 8am.[18]The claimant contended that in or around November 2020, Watertight increased in size, re-organised its work teams and assigned the claimant to a team who lived near the Tamar Bridge and who undertook most of their work in Cornwall. The claimant further contended that the works team to which he was assigned required the claimant to meet them close to the Tamar Bridge by 7/ 7.30am and if he was not there by such time to make his own way to job sites in Cornwall (including Launceston), causing him difficulties with transport as he did not drive and relied on his mother to assist him to get to work. The claimant further contended that he raised his transport difficulties with the owner of the business who told him that he did not wish to get involved and advised the claimant that he should “work things out” with the leader of the work team. The claimant further stated in evidence that when he spoke to the leader of the work team he was not prepared to collect the claimant from the Plymouth base, that he was therefore required to travel to the Tamar Bridge / sites in Cornwall as referred to above and that in the circumstances the claimant decided that he could no longer meet the requirements of the job and that it was better to resign his employment and leave on good terms. The claimant stated that he believed that Watertight’s actions would be classed as constructive dismissal. The claimant does not contend that the raised any formal grievance with Watertight regarding any transport difficulties. The claimant resigned his employment with Watertight Roofing on 15 January 2021.[19]Having given careful consideration to the above, the Tribunal is not satisfied, on the balance of probabilities, and having considered the limited available evidence that the claimant has substantiated his contentions including that he was required to attend at the Tamar Bridge/ travel to sites in Cornwall as contended and/or that any transport difficulties were dismissed as contended by Watertight.[20]When reaching this conclusion, the Tribunal has taken into account in particular, that it is the claimant’s case that it was an express term of his contract that he was required to attend the respondent’s base in Plymouth by 8am. The Tribunal therefore considers it unlikely, on the balance of probabilities, that the respondent would have required an apprentice in training who was employed on such terms to attend as contended above/ would not have assigned him to a more local team (as he was employed initially) if the claimant had raised with them difficulties regarding transport. Further, the claimant has not provided any particulars to substantiate his contentions including the identification of any relevant dates, times or jobs when he says he was required to travel as contended above and/or the dates of any alleged discussions with management of Watertight relating to any such concerns. Further, when asked in evidence why he did not leave his tools in the works van and use his motorcycle to attend any jobs the claimant stated that he could not do so as he was not always assigned to the same van and could be working locally.[21]There is a dispute between the parties as to the monies earned by the claimant whilst in the employment of Watertight and in particular whether the figures provided by the claimant to the Tribunal were gross or net. The claimant has not provided the Tribunal with any payslips from Watertight. The claimant says that the gross total figure received from Watertight was £3,800 with a total net figure of £2,855 and that he initially confused the gross and net figures. The respondent says that the figure initially stated by the claimant to have been received from Watertight was £3,800 and that this is the figure which should be adopted. The Tribunal accepts, on the balance of probabilities and, notwithstanding the claimant’s failure to provide a copy of any payslips from Watertight, the claimant’s evidence/ explanation regarding such monies.[22]The claimant contends that following his departure from Watertight he tried unsuccessfully to find an alternative work placement but was unable to do so within the 4-week period required by the College. Whilst the claimant has not provided any documentary evidence of the attempts which he made to secure an alternative placement the Tribunal accepts such evidence, on the balance of probabilities.[23]The claimant passed his driving test around the end of February 2021/ beginning of March from which time he had the use of the Ford Focus which had been given to him in or around the end of October / the beginning of November 2020. Rapid Roofing[24]As the claimant was unable to secure an alternative placement he decided, after discussion with his College Tutor, to go self-employed over a period of 3 years to enable him to complete his roofing college course and obtain an NVQ. The claimant has recently been informed that he can apply for his NVQ with effect from 28 February 2023.[25]In February 2021 the claimant started, with the assistance of his family, his own business called Rapid Roofing. The business was officially set up on 8 March 2021 with the first customer on 22 March 2021.[26]The claimant is claiming (after various revisions/ adjusted figures) startup costs totalling £5,555.38 (including £2,888.00 for a car and £2,381.38 for car insurance together with smaller sums for tools/ ladders). The claimant has submitted a statement from his grandmother Miss Bassett in which she states that she paid the set-up costs of £5,555.38 from her personal bank account. Miss Bassett did not however attend the remedy hearing to support her statement and the claimant has not provided any documentary evidence in support of his start-up costs. The claimant contended that he did not have/ did not save the receipt for the car (which is described as a Skoda) or ladders and sought to explain the absence of such documents on his lack of experience and understanding of Tribunal matters. The respondent stated that the Tribunal should approach any such claims with caution in the light of the varying figures put forward and lack of any documentary evidence.[27]Whilst the Tribunal appreciates that the claimant is a litigant in person with a stated diagnosis of autism/ no previous experience of Tribunal proceedings the Tribunal is nevertheless, not satisfied that claimant has provided a satisfactory explanation for the absence of any supporting documentary evidence. This is particularly so in the light of the expensive nature of the items involved namely, a motor vehicle / associated insurance in a combined sum of in excess of £5,000 and further that the claimant (who has been very ably assisted by his mother in these proceedings) was directed by the CMO dated 19 December 2022 to provide such evidence. The Tribunal is therefore not satisfied, in the absence of any supporting evidence, that the claimant/ his grandmother have incurred such costs. Rapid Roofing Trading[28]The “balance sheet” which was provided by the claimant for the hearing on 16 December 2022 (inserted as pages 107-108 in the remedy bundle) records that (disregarding any start-up costs) the claimant had outgoings of £14, 856.53 and an income of £16. 818.25 for the period between March and December 2021. Therefore, disregarding any start-up costs (of which there must have been some notwithstanding that the claimant has been unable to prove those referred to above) the claimant had a net income of less that £2,000 for such period. In the following 10 months the claimant however achieved an impressive increase in income to £72,994.36 with outgoings of £56, 002.48 (a surplus income of £16,991.88). Deductions for CIS and a loan from the claimant, as a company director with money received from his late father, gave a small overall recorded loss of £74.87. Costs of completing his qualification as a roofer[29]If the claimant had remained with the respondent/ Watertight the claimant’s costs of qualification as a roofer would have been met by them as part of their training arrangements. The documentary evidence shows that the cost of the lead course would be £900 (£750 plus VAT) (page 56 of the bundle) and that the further cost of completing the NVQ would be £724 (page 57 of the bundle). THE SUBMISSIONS OF THE PARTIES[30]The Tribunal has given careful consideration to the helpful points of agreement / disagreement / responses provided by the parties together with their respective skeleton arguments contained at pages 71-79 and 85 -106 of the remedy bundle the contents of which are referred to further in the Tribunal’s Conclusions below.[31]The Tribunal has also had regard to the authorities which are relied upon by the parties as referred to below; - Hadley v Baxendale [ 1843- 60] All ER Rep 461] Robinson v Harman (1848) 1 Exch 850 Dunk v George Waller & Son Limited [1970] 2 AER 630, CA Hardwick v Leeds Area Health Authority [ 1975] IRLR 319 Radford v De Froberville [ 1978] 1AER 33. Kinnear v Marley (case number 4105371/ 2016 – ET). THE LAW The claimant’s breach of contract claim[32]The Tribunal has had regard in particular in respect of the claimant’s wrongful dismissal claim (damages for breach of contract in respect of the wrongful termination of his common law apprenticeship) to the provisions of the 1994 Order. The Tribunal has also had regard to the authorities referred to above. The claimant’s further claims[33]The Tribunal has also had regard to the following statutory provisions: -(a) The provisions of the ACAS Code together with section 207 A of 1992 Act and Schedule A2 thereof.(b) The provisions of section 1 and 11 of the 1996 Act together with section 38 of the Employment Act 2002 and sections 221/ 222 of the 1996 Act (a week’s pay).[34]The Tribunal has reminded itself in particular of the following matters in respect of the claimant’s claim for wrongful dismissal: -(a) This is a contractual claim and the Tribunal is therefore required to determine it in accordance with the principles of common law.(b) The starting point is that “where a party sustains a loss by reason of a breach of contract, he is so far as money can do it, to be placed in the same situation with respect to damages, as if the contract had been performed” Robinson v Harman (as referred to above).(c) In Dunk v Waller it was recognised that the wrongful termination of a common law contract of apprenticeship entitled the claimant to damages for wages up to the intended end of the apprenticeship together with an amount to reflect the lack of training and loss of opportunities that the completion of the apprenticeship would give.(d) If a claimant does not take reasonable steps to mitigate his losses, he is not entitled to recover damages which could have been reasonably mitigated. The respondent bears the burden of proving that the claimant has not mitigated his loss.(e) The further related, but separate question is whether the losses claimed by the claimant for the period following the termination of his employment with Watertight are too remote and therefore break the chain of causation or are they losses which, viewed objectively, are properly attributable to the original wrongful dismissal by the respondent. The Tribunal has reminded itself that the fact that an employee has been able to secure suitable permanent employment following the original wrongful dismissal does not necessarily mean that the chain of causation has been broken. A reasonable but unsuccessful attempt to mitigate does not cut the chain between the wrongdoing and loss which on ordinary principles of causation flowed from it. The claimant’s wrongful dismissal claim[35]The Tribunal has considered first the claimant’s claim for damages for breach of contract for lost wages and further costs in respect of the wrongful termination of his common law apprenticeship (which had a due end date of 31 October 2021) on 17 August 2020. The claimant’s submissions[36]In summary, the claimant contends that he, at all times, made reasonable attempts to mitigate his losses including by :-(a) initially securing alternative employment with Watertight(b) when he was unable to continue to work for them by reason of their unilateral changes in work location / pick up arrangements reasonably left their employment and(c) thereafter set up his own business when unable to secure other alternative employment.[37]The claimant further denied that there had been any break in the chain of causation. The claimant contended that the losses which he suffered following the alleged breakdown of his relationship with Watertight, including in respect of his decision to set up his own business following his inability to secure further suitable alternative employment, were properly attributable to his original wrongful dismissal by the respondent and were moreover reasonably foreseeable.[38]The claimant relies in particular on the authorities of Dunk v Waller and Kinnear v Marley in support of his claims. The respondent’s submissions[39]In summary, whilst the respondent accepts that the claimant is entitled to be placed in the position that he would have been in if the contract had been performed, he contended, in essence, that the claimant had failed reasonably to mitigate his losses when he decided to leave Watertight and thereafter to set up his own business. The respondent says that the claimant did not act reasonably in leaving Watertight as there were other ways in which any difficulties could have been resolved including by using his motorcycle until he had passed his driving test and that other options were therefore available to the claimant. The respondent further contended that if the claimant acted unreasonably in failing to mitigate it is more likely that leaving Watertight was a break in the chain of causation.[40]The respondent further contended that whatever happened with Watertight should not, in any event, fall on the respondent’s shoulders as the losses sustained by the claimant following the obtaining and his subsequent resignation from Watertight was a new and independent cause of further damage occurring namely, the costs of the increased time involved in adopting a self-employed route to qualification / the setting up of Rapid Roofing. The respondent further contended that the loss following the ending of the employment relationship with Watertight was too remote as it was not a loss which fairly and reasonably arose naturally from the breach by the respondent and/or was not foreseeable. Mitigation of Loss[41]The Tribunal has considered first whether the claimant has taken reasonable steps to mitigate his losses.[42]When considering this question the Tribunal has reminded itself that the burden is on the respondent to satisfy the Tribunal that the claimant has failed to discharge such duty.[43]The Tribunal is satisfied that the claimant secured, with commendable promptness, with effect from 1 September 2020, not only suitable alternative employment with Watertight but also the continuance of his roofing apprenticeship which enabled him to remain on his course at the South Devon College and on track to qualify as a roofer. This alternative employment as an apprentice also provided the claimant with a written contract of employment together with the tripartite training commitment agreement referred to above on what the claimant contended was a broadly similar level of salary.[44]The Tribunal has therefore gone on to consider whether, viewed objectively, that the claimant took reasonable steps to mitigate any further losses when leaving the employment of Watertight and subsequently setting up on his own account when further alternative employment was not available.[45]Having given careful consideration to the competing arguments the Tribunal is not satisfied that the claimant took reasonable steps to mitigate any future losses when leaving Watertight on 15 January 2021 for the reasons explained below.[46]Firstly, the claimant had secured alternative employment / a roofing apprenticeship with a company which he described as a large and expanding company based in Plymouth. The claimant further described the teaching which he received at Watertight as “amazing”.[47]The Tribunal is not satisfied, on the available evidence, that the claimant was required to make his own way as contended above or that the claimant, in any event, gave sufficient consideration to the possible ways in which any transport difficulties could be resolved. The claimant did not contend that he had requested a transfer to another team / that he had made any attempt to invoke the respondent’s grievance procedure to try to resolve any issues relating to transport/ any alleged breaches of the terms of his employment by the respondent. Further the claimant, in any event, had the potential interim use of his motorbike together with the likely use of his own motor vehicle in prospect at the time of his resignation from Watertight as he had acquired a motor vehicle (a ford focus) from in or around October 2020 and had been learning to drive since the time of his employment with the respondent (and did in fact subsequently pass his driving test around the end of February 2021, shortly after his resignation from Watertight).[48]In all the circumstances, the Tribunal is not satisfied on the facts, that the claimant took reasonable steps to mitigate any further losses when he resigned his employment with the respondent in January 2021. The chain of causation/ foreseeability[49]The Tribunal has gone on to consider the effect of the claimant’s employment with Watertight on 1 September 2020 and the subsequent termination thereof on 15 January 2021 on the claimant’s claim for damages including whether any losses incurred after that date are, in any event, properly attributable to the wrongful termination of the contract by the respondent in August 2020 / the losses were foreseeable or whether the chain of causation was broken.[50]As stated previously above, the claimant contends that the loss of wages together with the further losses claimed by him (including for the start-up costs of Rapid Roofing, the costs of NVQ qualification and for loss of opportunity / future prospects) are all properly attributable to the respondent’s wrongful dismissal and that the claimant should not be penalised for his reasonable attempts to mitigate his losses. The claimant seeks damages in accordance with the authorities of Dunk and Waller and Kinnear.[51]As stated above, the respondent contends that the claimant’s employment with Watertight, together with claimant’s subsequent resignation in January 2021 breaks the chain of causation/ means that any losses incurred thereafter are no longer attributable to the claimant’s wrongful dismissal in August 2020/ were not foreseeable.[52]Having weighed the competing arguments and had regard to the relevant findings of fact, the Tribunal is not satisfied that, viewed objectively, (and regardless of whether the claimant was entitled to resign his employment by reason of any culpable conduct by Watertight) any losses incurred by the claimant after 15 January 2021 ( the date of his resignation from Watertight) flow from / are, in any event, properly attributable to the wrongful dismissal by the respondent on 17 August 2020 / were reasonably foreseeable for the reasons explained below.[53]Firstly, the claimant secured permanent employment (after completing an initial probationary period), which he accepted was on broadly comparable terms to that on which he was engaged with the respondent, as a roofing apprentice with Watertight with effect from 1 September 2020. This employment was also the subject of a tripartite training agreement which included South Devon College and enabled the claimant to continue to study for his NVQ and benefit from high quality on the job training. In practice, Watertight therefore stepped into the shoes of the respondent including with regard to training and the associated commitments.[54]The claimant had been employed by Watertight for a period of 4 ½ months before it came to an end by reason of the claimant’s resignation. Further, the Tribunal is not satisfied on the facts that the claimant acted reasonably in all the circumstances in resigning his employment at that time for the reasons explained previously above.[55]Further, even if the Tribunal is wrong about the conduct of Watertight/ the circumstances in which the claimant resigned from Watertight, the Tribunal is not, in any event, satisfied, viewed objectively, that their actions after an intervening period of 4.5 months employment are properly attributable to/ flow from the original dismissal by a respondent who had himself employed the claimant for no more than 10 months ( and less if the period of covid furlough is taken into account) and that there is therefore a break in the chain of causation/ such losses were not forseeable.[56]When reaching its conclusions, the Tribunal has had regard to the judgments in Dunk &Waller and Kinnear relied upon by the claimant. Both cases are however, distinguishable from the present case as in those cases neither of the claimants had been able to secure an alternative apprenticeship and /or had resigned from subsequent employment.[57]The claimant’s contractual claim is therefore limited to any losses incurred up to 15 January 2021 which are as calculated below. Damages for loss of wages up to 15 January 2021[58]On the basis of its findings of fact, the Tribunal is satisfied that the claimant’s net weekly salary at the time of the termination of his employment with the respondent was £195 per week (the payslip at page 109 of the bundle) which was based on a gross hourly rate of £5 for 40 hours per week (£200 gross per week less statutory deductions).[59]The claimant contends that his hourly rate during his second year of employment with the respondent would have been adjusted to £7/ £7.50 per week in accordance with the increase afforded to Jacob Blight during his second year of employment. The respondent disputes this and says that the applicable hourly rate is the claimant’s hourly rate at the date of the termination of his employment of £5.[60]Having given the matter careful consideration, including that in contractual claims a Tribunal is required to place a claimant in the position he would have been in if the contract had been performed, the Tribunal is satisfied that if the claimant had remained in the respondent’s employment, he would, on the balance of probabilities, have received a pay rise in line with that afforded to Mr Blight ( which the Tribunal has found in the liability judgment was an increase to £7 per hour ) particularly as the Tribunal also found that the respondent did not have proper cause to terminate the claimant’s employment without notice.[61]The Tribunal is therefore satisfied that the claimant’s net weekly pay would have risen to £200 per week (allowing for statutory deductions) with effect from 21 October 2020 and that any loss in wages between 21 October 2020 and 15 January 2021 should be calculated accordingly.[62]When calculating the net loss of wages, the Tribunal has taken into account that the respondent paid the claimant a week’s notice on termination on 17 August 2020 and that the claimant’s losses therefore accrue from 24 August 2020.[63]When calculating the loss of wages the Tribunal has also taken into account the total net figure which the claimant has given (and has been accepted by the Tribunal) for his wages received from Watertight in the sum of £2,855.[64]The Tribunal calculates that the claimant was employed by Watertight for approximately 19 weeks and therefore, in the absence of any relevant payslips or other information, calculates that the claimant’s net weekly pay with Watertight was therefore £150 net per week.[65]The Tribunal therefore calculates that the claimant is entitled to the following damages for breach of contract: -(a) Week of 24 August – 31 August - £195 net.(b)1 September 2020 – 20 October 2020 (7 weeks) 7 x £195 net = £1,755 less 7x £150 net = £1,050 = £705 net.(c)21 October 2020 to 15 January 2021 (12 weeks) 12 x £200 (the net increased figure) = £2,400 less 12 x £150 net = £1,800 = £600 net(d) Total net loss = £1,500.(e) The Tribunal also considers that it is appropriate to exercise its discretion to award interest at 8 per cent per annum (being equivalent to the judgment rate) from 15 January 2021 (when the potential claim accrued) until the date of this judgment of 7 April 2023 which the Tribunal calculates as follows (2 years and 12 weeks) = £270.(f) The breach of contract award is therefore = £ 1,770. ACAS uplift[66]The Tribunal has therefore gone on to consider whether the above award should be uplifted for any breach of the ACAS Code pursuant to section 207 (A) of the 1992 Act. The claimant contends that it should be uplifted by 25 per cent in the light of the respondent’s complete failure to adhere to the ACAS Code. The respondent contends that any ACAS uplift should be limited to 15 per cent in the light of the serious nature of the allegations against the claimant and the potential negative impact to his business.[67]Having given careful consideration to the provisions of section 207 A of the 1992 Act, the ACAS Code together with the relevant findings of fact the Tribunal is satisfied that the claimant’s claim of wrongful dismissal is one to which the ACAS Code applies. The Tribunal is further satisfied that the respondent has failed to comply with the ACAS Code and that such failure is unreasonable. The Tribunal is further satisfied that, in all the circumstances of the case, it is just and equitable to increase the above award by 25 per cent.[68]When reaching the above conclusions, the Tribunal is satisfied on the facts that there was a complete failure by the respondent to comply with the provisions of the ACAS Code. The Tribunal found on the facts that when the claimant arrived for work on 17 August 2020, he found his possessions by the side of the road and was told by the respondent that he had been dismissed. Further, the respondent did not respond to the subsequent requests of the claimant / his mother for a copy of the respondent’s disciplinary and grievance procedure/ copy contract and reasons for the claimant’s dismissal (paragraphs 38 and 39 of the liability bundle).[69]Further, the Tribunal rejects the respondent’s contention that the award should be reduced to 15 per cent for the reasons referred to above and also because the Tribunal held that the allegations against the claimant were not serious enough to justify the termination of his employment/ common law contract of apprenticeship (paragraph 87 of the liability judgment).[70]The claimant’s damages for breach of contract are therefore uplifted by 25 per cent to £2,212.50.[71]The claimant is therefore awarded, and the respondent is ordered to pay to him, the total sum of £2, 212.50 in respect of his breach of contract claim for wrongful dismissal. Failure to provide written particulars of employment.[72]Finally, the Tribunal has considered the claimant’s claim for compensation pursuant to sections 1 and 11 of the 1996 Act and section 38 of the Employment Act 2002 in respect of the respondent’s failure to issue a written statement of terms and conditions of employment as required by such statutory provisions.[73]The claimant is claiming 4 week’s pay, which he variously cites as being between £6.98 - £7.50 per hour to align with the pay rise which Jacob Blight received during his second year as an apprentice. The claimant also contends that it should be 4 weeks’ rather than 2 weeks’ because his dismissal was brought about in part by the lack of any written statement of terms of employment.[74]The respondent contends that it should be limited to 2 weeks’ at £195.92 per week which was the claimant’s net pay at the time of his dismissal. The respondent further says that it should be limited to 2 weeks’ pay as the respondent is a small employer.[75]The Tribunal has given careful consideration to the provisions of section 38 of the Employment Act 2002 together with sections 221 and 222 of the 1996 Act relating to the statutory definition of a week’s pay.[76]Having given careful consideration to the above provisions and the relevant facts the Tribunal is satisfied that it is just and equitable to award the claimant the higher amount of 4 weeks’ pay. The reasons for this is that notwithstanding that the respondent is a sole trader/ small employer his failure to issue the claimant with a statement of terms and conditions of employment goes to the heart of the difficulties which arose in this case relating to the claimant’s employment status. Moreover, when the respondent signed the training documentation with South Devon College, he wrongly represented to the College that he had issued a statement of terms and conditions to the claimant.[77]As to the amount of the award – the Tribunal disagrees with both parties. The provisions of the 1996 Act, and in particular sections 220 and 221 define a week’s pay and the relevant calculation date. This is a gross sum (which is subject to a statutory maximum which is not relevant here). Doing the best that we can with the available information (the pay slip at page 109) the Tribunal has taken the claimant’s stated gross weekly pay as £200.[78]The claimant is therefore awarded, and the respondent is ordered to pay to him the sum of £800 (4x £200) pursuant to section 38 of the Employment Act 2002.[79]The final total sum awarded to the claimant and which the respondent is ordered to pay to him is therefore (£2,212.50 plus £800) = £3,012.50.[80]The Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply in this case.[1]The claimant has applied for a reconsideration of the reserved (remedy) judgment with reasons dated 7 April 2023 which was sent to the parties on 12 April 2023 (“the Remedy Judgment”). The Remedy Judgment followed a remote oral hearing on 13 March 2023 before Employment Judge Goraj and Messrs P Bompas and D Stewart. In the Remedy Judgment the Tribunal awarded the claimant damages for breach of contract together with other associated monies and interest totalling £3,012.50.[2]When reviewing the Remedy Judgment for the purposes of this judgment the Tribunal noted 3 typographical errors namely, that the references to the date of the commencement of the claimant’s employment with Watertight in paragraphs 14 and 16 of the Remedy Judgment should be to September 2020 and not to 2021 and also that the reference to respondent in paragraph 48 should be to Watertight rather than to the respondent.[3]The Remedy Judgment was sent to the parties on 12 April 2023 and the claimant’s application for reconsideration dated 24 April 2023 (“the application dated 24 April 2023”) was received by the Tribunals on the same date. The claimant’s application dated 24 April 2023 was therefore received within the requisite time limit for the purposes of Rule 71 of Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the Regulations”).[4]The claimant also lodged on 24 April 2023 an appeal to the Employment Appeal Tribunal (“the EAT”) on the same grounds as those contained in the application dated 24 April 2023.[5]The claimant also has an extant appeal to the EAT (case no EA-2022- 000503-AS) in respect of the Tribunal’s dismissal of the claimant’s age discrimination claim in the original reserved liability judgment which was sent to the parties on 4 April 2022 (“the liability judgment”).[6]Further the liability judgment was the subject of a (partially successful) reconsideration application dated 6 April 2022 and subsequent reconsideration Judgment which was sent to the parties on 22 September 2022 (“the reconsideration judgment dated 22 September 2022”) by which the Tribunal decided, for the reasons explained therein, to revoke/ vary its original findings relating to the nature of the claimant’s apprenticeship agreement with the respondent and substitute a finding that the claimant was employed by the respondent under the terms of a common law apprenticeship with an ascertainable end date of 31 October 2021. The remaining aspects of the reconsideration application dated 6 April 2022 were however dismissed by the Tribunal pursuant to a letter dated 28 April 2022 with attached reasons dated 26 April 2022.[7]The claimant’s application dated 24 April 2023 has been considered by Employment Judge Goraj, who was the Employment Judge who chaired the Tribunal Panel at the Hearing on 13 March 2023, in accordance with Rule 72(1) and (2) of the Regulations.[8]The claimant contends that it is in the interests of justice for the Tribunal to revoke/ vary the Remedy Judgment in respect of the Tribunal’s decision not to award the claimant any damages for breach of contract or associated alleged costs and expenses in respect of the period after the 15 January 2021 (the date of the termination of the claimant’s employment with his successor employer Watertight Roofing). The claimant’s application dated 24 April 2023[9]The claimant’s application dated 24 April 2023 is a detailed document with several appendices. In summary, however the claimant’s principal grounds for reconsideration appear to be as follows: -(1) Failure by the Tribunal to have proper regard to the evidence / to have proper regard to / apply the relevant law (relating in particular to mitigation and/or break in chain of causation).(2) The alleged bias and/or oppressive conduct of the Employment Judge.(3) The alleged oppressive conduct of the respondent’s Counsel.(4) The further information/ submissions contained in the Appendices including relating to dealings with Watertight Roofing (“Watertight”) and set up costs/ expenses incurred. THE LAW AND THE CONCLUSIONS OF THE TRIBUNAL THE LAW[10]The Tribunal has had regard/ reminded itself in particular of the following: -(1) Rules 70 -73 of the Regulations referred to above including, that the grounds for reconsideration are limited to those set out in Rule 70, namely, that it is necessary in the interests of justice to do so. The interests of justice apply to both parties.(2) It is in the interests of both parties for there to be finality in litigation and it is not therefore normally in the interests of justice for a Tribunal to permit a party to submit further oral or documentary evidence/ submissions following an oral hearing and issue of a judgment unless :- (a) there is new evidence which comes to light following the hearing/ judgment which could not have been obtained with reasonable diligence for use at the original hearing (b) that the evidence would probably have had an important influence on the hearing and (c) that the evidence is apparently credible Ladd v Marshall 1954 3 AllER 745 CA and Outasight VB Limited v Brown 2015 ICR D11 EAT. It was recognised in Brown that the interests of justice may still allow fresh evidence to be adduced where some additional factor or mitigating circumstance has the effect that the evidence in question could not have been obtained at an earlier stage.(3) The guidance contained in the EAT judgment of Trimble v Supertravel Ltd [1982] ICR 440 EAT, and in particular, that if a matter has been ventilated and argued at a Tribunal hearing any error of law falls to be corrected on appeal and not by review on reconsideration. THE CONCLUSIONS OF THE TRIBUNAL Issue 1 - The alleged failure by the Tribunal to have proper regard to the evidence / to have proper regard to / apply the relevant law (relating in particular to mitigation and/or break in chain of causation).[11]The claimant contends in the application dated 24 April 2023 that the Tribunal failed to act as stated above. Having regard to the guidance contained in the EAT authority of Trimble (referred to above) the Tribunal is satisfied that as:-(a) these matters were fully ventilated at the Hearing on 13 March 2023(b) are addressed in the Remedy Judgment (paragraphs 4-8 (documentation/ statements and Issues), 11- 29 (findings of fact),30 – 34 (law and authorities) and 35 – 57 (conclusions of the Tribunal relating to the contractual issues including the respective submissions of the parties) and(c) further relate to alleged errors of law on the part of the Tribunal that they fall to be determined by way of an appeal to the EAT rather than by way of reconsideration. The claimant has lodged an appeal with the EAT on the same grounds as those raised in the application dated 24 April 2023. The claimant will therefore have an opportunity to raise such matters with the EAT.[12]This aspect of the reconsideration application dated 24 April 2023 is therefore dismissed on the grounds that it will fall to be determined by the EAT. The Tribunal will send a copy of this judgment to the EAT so that the EAT is aware of the position. Issue 2 the alleged bias and/or oppressive conduct of the Employment Judge[13]It appears that the alleged bias and/or oppressive conduct of the Employment Judge relates to the following matters in particular :-(a) the conclusions of the Remedy Judgment insofar as the Tribunal did not find in the claimant’s favour regarding aspects of the claimant’s contractual claim for breach of contract relating to mitigation and chain of causation in respect of his employment with Watertight(b) favouring the respondent over the claimant in respect of the conduct of the proceedings including in respect of the (postponed) hearing on 16 December 2022/ the requirement to provide further documentation and(c) permitting the respondent’s Counsel to engage in alleged oppressive conduct in relation to the questioning of the claimant at the hearing on 13 March 2023 relating in particular to the monies claimed in respect of the setting up of his business and associated costs. (a) Alleged bias by the Employment Judge in respect of outcome of the Remedy Hearing.[14]The Remedy Judgment was a unanimous judgment reached by three panel members after consideration of the oral and written evidence/ submissions referred to in that judgment. Any errors of law (including any perversity on the part of the Tribunal) fall to be determined by the EAT on appeal in accordance with the guidance in Trimble as previously referred to above. (b) Favouring the respondent over the claimant in respect of the conduct of the case including in respect of the postponed hearing on 16 December 2022.[15]The respondent’s representative applied to postpone the initial remedy Hearing on 16 December 2022 on the grounds that it had become apparent that she had not been provided with relevant documentation by her instructing solicitors, including the claimant’s spreadsheet of loss. The claimant consented to this application and raised no objections/ concerns at the hearing on 16 December 2022 to the postponement of the remedy hearing or the convening of a case management hearing. When deciding to grant the respondent’s postponement application the Tribunal also took into account that the claimant/ his representative were experiencing technical issues which meant that they were unable to connect properly to the remote hearing (after we had tried with both VHS and CVP). In the circumstances, the Tribunal did not consider that it would be in the interests of justice to continue with a contested hearing whereby a claimant with a stated condition of autism (and who was not initially in attendance at the hearing that morning as the Tribunal was informed that he was in bed with flu) to give his evidence/ be cross examined by telephone.[16]The Tribunal decided, with the agreement of the parties, to convert the hearing on 16 December 2022 to a case management hearing particularly as the Tribunal noted that the claimant appeared to have provided little documentary evidence to support his complex spreadsheet of losses / associated costs. As reflected in the subsequent case management order dated 19 December 2022 (“the CMO dated 19 December 2022”) (paragraphs 5 and 11), the Tribunal explained to the claimant/ his representative the importance of providing relevant documentation/ oral evidence relating to remedy (which was not limited to evidence from the claimant) in support of his claims including his claims for the startup costs of his business (Rapid Roofing) and any training or associated costs. The claimant/ his representative did not raise any concerns at the time regarding the conduct of the case management hearing on 16 December 2022/ raise any objections to the direction to provide further documentation.[17]Further in respect of the other unspecified allegations that the Employment Judge has favoured the respondent over the claimant, it is apparent from the judgments of the Tribunal in this matter that the Tribunal has on some aspects found in the favour of the respondent and others in favour of the claimant. Whilst for instance, the Tribunal did not initially find in the claimant’s favour in respect of his status as a common law apprentice, it subsequently permitted the claimant to submit further documentation on reconsideration and drew to the attention of the parties the authorities of Flett v Matheson 2006 ICR 673 CA and Chassis and Cab Specialists Limited v Lee EAT 0268/10 and in the light of which further documentation/ authorities the Tribunal found in the claimant’s favour on this issue for the reasons explained in the reconsideration judgment dated 22 September 2022.[18]The Tribunal has also been mindful during these proceedings of the claimant’s stated condition of autism. At the start of the liability hearing at the end of February 2022, the Tribunal enquired whether any adjustments were required to the conduct of the hearing by reason of the claimant’s condition and was informed that no adjustments were necessary (paragraph 6 of the Liability Judgment). Further no concerns were raised in the claimant’s original reconsideration application dated 6 April 2022 concerning the conduct of the Tribunal in relation to the claimant’s evidence at the liability hearing.[19]This aspect of the application dated 24 April 2023 is therefore also dismissed. (c) The alleged oppressive conduct on the part of the respondent’s Counsel[20]This allegation appears to relate to the conduct of the respondent’s Counsel in respect of her cross - examination of the claimant at the hearing on 13 March 2023 relating to his claims for compensation in respect of the setting up of his business Rapid Roofing / associated costs together with the alleged failure of the Employment Judge to prevent such alleged conduct. The claimant does not contend that he was prevented from adducing any further relevant information by reason of the alleged conduct of the respondent.[21]By way of background, the claimant relied on two remedy witness statements for the purposes of the remedy hearing namely one from himself and one from his grandmother, Miss Bassett. Miss Bassett did not however attend the remedy hearing. Further, notwithstanding the directions contained in the CMO dated 19 December 2022, the claimant provided little documentary evidence in support of his financial claims including in respect of the costs of setting up his business Rapid Roofing/ its associated profit and loss account. Moreover, the claimant did not provide any documentary evidence from his grandmother relating to any financial support/ any documents relating to the purchase of a motor vehicle (a Skoda) or any associated insurance/costs of equipment.[22]It is against this background, that the claimant’s Counsel sought to cross examine the claimant regarding his claims for compensation. The respondent’s Counsel conducted her cross – examination in a professional manner. In response, the claimant indicated at times that he was unable to answer her question including as his mother had dealt with the relevant matters on his behalf. The claimant also indicated during his cross examination that he was feeling anxious.[23]In the circumstances, and in recognition of the claimant’s stated condition of autism and indication that he was feeling anxious, the Tribunal agreed with the parties that, notwithstanding that the claimant’s mother/ representative, Ms Vuitton had not submitted a witness statement for the purposes of the remedy hearing, she would be allowed to give evidence to the Tribunal. It was agreed that she would be permitted to give evidence regarding any financial matters which the claimant was unable to answer/ which she had dealt with on his behalf including regarding any discrepancies relating to the claimant’s schedule/ spreadsheet of loss / any set up costs/ the profit and loss account for Rapid Roofing (paragraph 8 of the Remedy Judgment). The claimant’s mother gave evidence accordingly and the claimant/ his representative did not raise any further concerns regarding cross examination by the respondent.[24]This aspect of the application dated 24 April 2023 is therefore dismissed. Issue 4 – Further information/ submissions contained in the Appendices including with regard to the claimant’s recent dealings with Watertight and expenses incurred.[25]The claimant has included a number of Appendices with the application dated 24 April 2023. In summary, these Appendices can be divided into two main areas namely: -(1) further legal and factual submissions including reliance on further legal authorities and(2) further information relating to (a) recent correspondence with Watertight (Appendix 2) (b) evidence of startup costs/regarding the purchase of the Skoda, car insurance and tools (Appendix 5) and (c) pastoral log / information from the College ( which the claimant had submitted previously).[26]In this case, the Issues to be determined at the remedy hearing were identified at the postponed Hearing/ converted case management hearing on 16 December 2022 including that the respondent denied that he was responsible for any losses incurred by the claimant following his employment with / resignation from Watertight (paragraph 4 of the CMO dated 19 December 2022). The Tribunal also gave directions for the sequential exchange of written submissions / any legal authorities relied upon by the parties in preparation for the remedy hearing with the respondent going first to assist the claimant (paragraphs 12 and 13 of the CMO dated 19 December 2022). Such submissions were subsequently exchanged as contained in the remedy Hearing Bundle. The parties were also given a further opportunity to make any further oral submissions at the Remedy Hearing.[27]In the circumstances, the Tribunal is satisfied that the claimant was afforded a proper opportunity to make any relevant submissions / draw to the attention of the Tribunal any relevant legal authorities and that as such matters have already been fully ventilated, any further consideration thereof falls to be considered as appropriate by the EAT in accordance with the guidance contained in Trimble referred to above. The additional documentation[28]Finally, the Tribunal has had regard to the following additional documents provided by the claimant namely the: -(a) correspondence with Watertight (Appendix 2) on 19 April 2023 and(b) further documentation relating to the set up costs / financing of Rapid Roofing. The Tribunal has further noted that in the correspondence with Watertight that company declined to provide any further information (other than in respect of the dates of the claimant’s employment with them and salary) regarding the “reasoning for Elliot handing in his notice (as) we fear that it may bring our company into disrepute”.[29]Having given careful consideration to the additional documentation provided by the claimant at Appendices 2 and 5 the Tribunal is not satisfied that it is in the interests of justice to admit the abovementioned documents (or any further associated factual submissions) at this stage of the proceedings. When reaching this conclusion, the Tribunal has had regard to the guidance contained in the authorities of Ladd v Marshall and Outasight v Brown referred to above together with the matters referred to below.[30]Having given the matter careful consideration the Tribunal is satisfied that the above information, including the refusal by Watertight to provide any information regarding the reasons for the claimant’s resignation for fear that it could bring that company into disrepute, could, viewed objectively, have been obtained by the claimant with reasonable diligence pursuant to the guidance in Ladd v Marshall for the purposes of the hearing on 13 March 2023.[31]When reaching this conclusion, the Tribunal is satisfied that the claimant would reasonably have been aware from the CMO dated 19 December 2022 that the respondent contended that it was not responsible for any losses incurred by the claimant following his employment with/ resignation from Watertight together with the requirement to provide any further documents relating to remedy (including in relation to any set up costs)(paragraphs 4 & 5 of the CMO dated 19 December 2022).[32]Further, in the subsequent documents entitled “Points of Agreement and Disagreement on Quantum Schedules” dated 6 February 2023/ the respondent’s written submissions dated 28 February 2023 prepared for the hearing on 13 March 2023, the respondent stated/ contended that:-(1) It was challenging the claimant’s claims for the set up costs of Rapid Roofing including in the light of the lack of supporting evidence (paragraph 19 of the document dated 6 February 2023 and (paragraphs 19 and 20 of the document dated 28 February 2023).(2) The claimant had acted unreasonably in leaving his employment with Watertight (paragraphs 9 and 16 of the submissions dated 28 February 2023). Further, this issue was, in any event, addressed in the claimant’s witness statement.[33]The Tribunal is therefore satisfied that the claimant would reasonably have been aware that these were matters in issue for consideration at the hearing on 13 March 2023.[34]In the circumstances, whilst it is possible that Watertight’s refusal to provide information regarding the circumstances of the claimant’s resignation for fear that it may have brought the company into disrepute may have had an influence on the findings of the Tribunal regarding the circumstances of the claimant’s departure from Watertight, the Tribunal is not satisfied, in the light of the matters referred to above, that there is any additional factor or mitigating circumstances whereby it is in the interests of justice to admit such further information following the conclusion of the hearing and issue of the Remedy Judgment.[35]This aspect of the application is therefore also dismissed.[36]In all the circumstances, and having had regard to the provisions of Rule 72 (1) of the Regulations the Tribunal is satisfied, for the reasons explained above that there is no reasonable prospect of the Remedy Judgment being revoked or varied and the claimant’s application dated 24 April 2023 is therefore dismissed.[1]The claimant has applied for a reconsideration of the reserved (liability) judgment with reasons dated 23 March 2022 which was sent to the parties on 4 April 2022 (“the Liability Judgment”) dismissing the claimant’s claims (including the claimant’s complaint of age discrimination). The Liability Judgment followed a remote oral hearing on 28 February and 1 and 2 March 2022 before Employment Judge Goraj and Messrs P Bompas and D Stewart. The claimant’s application for reconsideration dated 23 May 2023 (“the application dated 23 May 2023”) relates only to the claimant’s complaint of age discrimination.[2]Although the application dated 23 May 2023 was received outside the requisite time limit for the purposes of Rule 71 of Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the Regulations”) it has been considered by the Tribunal pursuant to the Order of the Employment Appeal Tribunal (“the EAT”) dated 1 May 2023 for the purposes of the claimant’s extant appeal to the EAT(case no EA- 2022-000503-AS) concerning the dismissal of the claimant’s age discrimination claim in the Liability Judgment[3]The claimant’s application dated 23 May 2023 has been considered by Employment Judge Goraj in accordance with Rule 72(1) and (2) of the Regulations as she was the Employment Judge who chaired the Tribunal Panel at the Liability Hearing (on 28 February and 1 and 2 March 2022).[4]The claimant’s complaint of age discrimination (direct age discrimination) was dismissed in the Liability Judgment for the reasons explained at paragraphs 42 – 56 thereof.[5]On 6 April 2022, the claimant submitted to the Tribunal an application for reconsideration of/ appeal against the Liability Judgment (“the application dated 6 April 2022”). An appeal was also presented to the EAT on similar grounds. In the claimant’s email dated 6 April 2022 he stated that the application dated 6 April 2022 related in particular to the Tribunal’s decision in relation to his wrongful dismissal claim. Further, the matters raised in the accompanying document dated 4 April 2022 related to the claimant’s breach of contract/ wrongful dismissal claim (in particular, the claimant’s contended status as a common law apprentice). There was no reference in either document to the claimant’s complaint of age discrimination/ any suggestion that the claimant considered that the outcome of the claimant’s breach of contract/ wrongful dismissal claim was in anyway linked to the outcome of the claimant’s complaint of age discrimination.[6]The application dated 6 April 2022 was partially successful and in the subsequent reconsideration Judgment which was sent to the parties on 22 September 2022 (“the reconsideration Judgment dated 22 September 2022”) the Tribunal decided, for the reasons explained therein, to revoke/ vary its original findings relating to the claimant’s breach of contract/ wrongful dismissal claim in respect of the nature of the claimant’s apprenticeship agreement with the respondent and substitute a finding that the claimant was employed by the respondent under the terms of a common law apprenticeship during the specified periods with an ascertainable end date of 31 October 2021. The application dated 6 April 2022 had however otherwise previously been dismissed by the Tribunal on 28 April 2022 for the reasons set out in the accompanying letter dated 26 April 2022. No further application was made by the claimant in respect of his age discrimination claim following the issue of the reconsideration Judgment on 22 September 2022. The Order of the EAT dated 1 May 2023[7]The Tribunal subsequently received from the EAT an Order dated 1 May 2023 (“the Order dated 1 May 2023”) in which it is recorded that the claimant was seeking to pursue an appeal against the dismissal by the Tribunal of his complaint of age discrimination. It is further recorded in the Order dated 1 May 2023 that the claimant was seeking to pursue his appeal on the grounds that the claimant’s breach of contract claim and age discrimination claims are closely linked and that the Tribunal had failed to revisit the Liability judgment relating to the age discrimination claim after determining the claimant’s breach of contract claim in the claimant’s favour on reconsideration.[8]The EAT noted in the Order dated 1 May 2023 that the claimant’s grounds of appeal did not appear to raise (at least expressly) any issue about the age discrimination claim and/or explain why the claimant’s breach of contract and age discrimination claims were linked and/or why the successful reconsideration of the claimant’s breach of contract claim meant that the Tribunal’s original findings on the age discrimination claim could no longer stand/ should be set aside.[9]The EAT further stated that if the claimant considered that the consequence of the successful reconsideration of the breach of contract claim was that the age discrimination claim should succeed the claimant should be given an opportunity to pursue this with the Tribunal by way of a further (albeit out of time) application for reconsideration. The claimant’s associated appeal to the EAT was accordingly stayed to permit such application. The claimant’s application dated 23 May 2023[10]The Tribunal subsequently received the claimant’s application dated 23 May 2023 together with an attached Skeleton Argument in support of the reconsideration of the claimant’s age discrimination claim.[11]The Tribunal has therefore considered the matters raised in the Skeleton Argument as appropriate as addressed below. THE LAW AND THE CONCLUSIONS OF THE TRIBUNAL THE LAW[12]The Tribunal has had regard/ reminded itself in particular of the following: -(1) Rules 70 -73 of the Regulations referred to above including, that the grounds for reconsideration are limited to those set out in Rule 70, namely, that it is necessary in the interests of justice to do so. The interests of justice apply to both parties.(2) It is in the interests of both parties for there to be finality in litigation and it is not therefore normally in the interests of justice for a Tribunal to permit a party to submit further oral or documentary evidence/ submissions following an oral hearing and issue of a judgment unless :- (a) there is new evidence which comes to light following the hearing/ judgment which could not have been obtained with reasonable diligence for use at the original hearing (b) that the evidence would probably have had an important influence on the hearing and (c) that the evidence is apparently credible Ladd v Marshall 1954 3 AllER 745 CA and Outasight VB Limited v Brown 2015 ICR D11 EAT.(3) The guidance contained in the EAT judgment of Trimble v Supertravel Ltd [1982] ICR 440 EAT, and in particular, that if a matter has been ventilated and argued at a Tribunal hearing any error of law falls to be corrected on appeal and not by review on reconsideration. THE CONCLUSIONS OF THE TRIBUNAL Paragraph D of the Skeleton Argument[13]The claimant contends at Paragraph D of the Skeleton Argument that he was not aware, as the Employment Judge did not confirm until reviewing the claimant’s schedule of loss at the postponed remedy/ case management hearing on 16 December 2022, that the age discrimination element of the claim had not been reconsidered and as such would need to be “ independent and claimed separately”. The claimant’s application dated 6 April 2022 was however dismissed by the Tribunal on 28 April 2022 (for the reasons explained in the accompanying letter dated 26 April 2022) save in respect of one aspect relating to the claimant’s breach of contract/ wrongful dismissal claim (as identified above) which was subsequently upheld in the reconsideration Judgment dated 22 September 2022.[14]Further, the Employment Judge noted when reviewing with the parties the claimant’s schedule of loss at the case management discussion on 16 December 2022 (following the postponement of the remedy hearing that day) that the claimant had included claims for compensation for unfair dismissal (as opposed to his breach of contract/ wrongful dismissal in breach of contract claim) and age discrimination. The Employment Judge explained to the claimant during the case management discussion that the Tribunal did not have the power to award the claimant any compensation for unfair dismissal (as the claimant did not have the necessary qualifying service) or for age discrimination as the latter complaint had been dismissed by the Tribunal. The position was subsequently confirmed (at paragraph 4) in the Case Management Order dated 19 December 2022. Paragraph E of the Skeleton Argument[15]The claimant contends at paragraph E of the Skeleton Argument that it was the claimant’s understanding that the age discrimination element of the claimant’s claims had automatically failed due to the dismissal of the claimant’s breach of contract and unfair dismissal claims including having had regard to paragraph 87 of the Liability Judgment. The claimant has not previously raised any such contention / made any associated application to the Tribunal.[16]The Tribunal is satisfied that it is clear on the face of the Liability Judgment that the age discrimination (the Conclusions at paragraphs 42 – 56 of the Liability Judgment) and breach of contract/wrongful dismissal claims (the Conclusions at paragraphs 76 – 89 of Liability Judgment as considered further in the reconsideration Judgment dated 22 September 2022) were treated as discrete claims with reasons given for the success/ failure of such claims. The Tribunal is further satisfied that it is clear on the face of the Liability Judgment that the Tribunal’s findings at paragraph 87 of the Liability Judgment related to the claimant’s breach of contract/ wrongful dismissal claim and are not linked to the outcome of the claimant’s complaint of age discrimination.[17]In the circumstances, the Tribunal is not satisfied that the claimant could reasonably have concluded that the claimant’s age discrimination claim had automatically failed due to the dismissal of the breach of contract/ wrongful dismissal claim.[18]Further, the Tribunal is not, in any event, satisfied on the facts that the Tribunal’s reconsideration Judgment dated 22 September 2022, whereby it revoked and varied the Liability Judgment relating to the claimant’s breach of contract/ wrongful dismissal claim and held instead that the claimant was engaged by the respondent on a common law contract of apprenticeship, has any bearing on the Tribunal’s Conclusions (at paragraphs 42- 56 of the Liability Judgment) relating to the claimant’s age discrimination / provides any grounds for revoking or varying the Tribunal’s findings relating to the claimant’s age discrimination claim. The fact that the Tribunal did not consider that the respondent’s concerns relating to the claimant’s conduct/ capability (as identified at paragraphs 25, 26, 27, 32, 33 and 37 of the Liability Judgment) were viewed objectively sufficiently serious to justify the summary termination of a common law contract of apprenticeship does not mean that the respondent, who believed at the time of the claimant’s dismissal that he was lawfully entitled to terminate the claimant’s employment on one week’s notice, did not have genuine /legitimate concerns regarding such matters/ that the claimant was therefore dismissed because of his age. The Tribunal explained at paragraphs 42 – 56 of the Liability Judgment why it dismissed the allegations of age discrimination and such Conclusions are unaffected by the reconsideration Judgment dated 22 September 2022.[19]The principal reason for the claimant’s successful application for reconsideration relating to his breach of contract / wrongful dismissal claim was that the claimant provided, after the promulgation of the Liability Judgment, a signed document relating to the training arrangements between the parties. The claimant was permitted to rely upon such document and which, for the reasons explained in the reconsideration Judgment dated 22 September 2022, led the Tribunal to conclude, on the balance of probabilities in the light of such further evidence and associated legal authorities, that the claimant had been engaged on a common law apprenticeship. This was not related to the claimant’s complaint of age discrimination/ the reasons for its dismissal. Paragraphs F – I of the Skeleton Argument[20]The claimant was represented at the Liability Hearing by his mother who was a strong advocate on his behalf. The claimant/ his representative were given a proper opportunity to raise any matters which they wished to raise with regard to the claimant’s age discrimination (and all other claims) and did so accordingly. The Tribunal reserved its Judgment in order to ensure that it had a proper opportunity to consider the evidence and submissions of the parties on all matters.[21]Further, the “facts”/ submissions subsequently referred to/ contained at paragraphs 1- 23 of the Skeleton Argument relate to matters which were previously raised at the Liability Hearing and are addressed at paragraphs 42- 56 of the Liability Judgment (or are, in any event, matters which could reasonably have been raised at that time). The application dated 23 May 2023 does not contain any new evidence requiring the reconsideration of the Tribunal’s findings in respect of the age discrimination claim in the interests of justice.[22]Moreover, having regard to the guidance contained in the EAT authority of Trimble (referred to above) the Tribunal is satisfied that as the matters referred to at paragraphs 1- 23 of the Skeleton Argument above were ventilated at the Liability Hearing / are addressed in the Conclusions of the Tribunal at paragraphs 42 – 56 of the Liability Judgment and the associated findings of facts, any alleged failings on the part of the Tribunal with regard to the outcome of the claimant’s age discrimination claim fall to be determined by way of the claimant’s appeal to the EAT rather than by way of reconsideration.[23]The Tribunal will send a copy of this judgment to the EAT in order to assist in the expedition of the consideration of the claimant’s appeal relating to the dismissal of his complaint of age discrimination.[24]In all the circumstances and having had regard to the provisions of Rule 72 (1) of the Regulations the Tribunal is satisfied, for the reasons explained above that there is no reasonable prospect of the Liability Judgment relating to the claimant’s complaint of age discrimination being revoked or varied in the interests of justice and the claimant’s application dated 23 May 2023 is therefore dismissed. Employment Judge Goraj Date: 5 June 2023 Judgment sent to Parties: 14 June 2023 Online publication of judgments and reasons The Employment Tribunal (ET) is required to maintain a register of judgments and written reasons. The register must be accessible to the public. The register is on online and Judgments and reasons since February 2017 are available at: https://www.gov.uk/employment-tribunal-decisions The Employment Tribunal has no power to refuse to place a judgment or reasons on the online register, or to remove a judgment or reasons from the register once they have been placed there. If you consider that these documents should be anonymised in anyway prior to publication, you will need to apply to the Employment Tribunal for an order to that effect under Rule 50 of the ET’s Rules of Procedure. Such an application would need to be copied to all other parties for comment and it would be carefully scrutinised by a judge (where appropriate, with panel members) before deciding whether (and to what extent) anonymity should be granted to a party or a witness.