Employment Judge TruscottMr D Lee father for claimantMr W Lane solicitor for respondentDate 28 July 2021
JUDGMENT
[1]The judgment of the Tribunal is that the claimant was an apprentice between 15 June 2018 and 22 August 2020.[2]A telephone case management hearing should be fixed to make arrangements for the merits hearing.
REASONS
[1]The Tribunal heard evidence from the claimant and Mr L Crookes, HR Manager on behalf of the respondent.[2]There was one volume of documents to which reference will be made where necessary. The numbering in the judgment refers to the pages in the electronic bundle.
Issues
[3]The issues for this hearing were identified at a preliminary hearing on 10 December 2019 as follows:
Issues
[1]Was the Claimant still an Apprentice at the date of termination of his employment?[2]The Respondent contends that he ceased to be an Apprentice on 1 September 2019.[3]If the Claimant was not an Apprentice at the date of termination of his employment, should all or part of his claim for breach of contract be struck out on any of the following grounds: a) that it has no reasonable prospect of success; and/or b) it was not presented in time?[4]The Employment Tribunal Judge will review the List of Issues (Appendix A) with the parties, list the final merits hearing and make any case management orders.
Findings of Fact
[1]On 15 June 2016, the claimant joined the respondent as an apprentice. The claimant entered into a written agreement with the respondent which follows what appears to be the respondent’s standard format [75-58]. It is headed APPRENTICESHIP AGREEMENT and narrates “This Agreement, together with the Apprentice Handbook, forms part of your Contract of Employment (except where the contrary is expressly stated) and sets out particulars of the main terms on which C C Cousins Ltd Eagle House, Sir Thomas Langley Rd, Medway City Estate, Rochester.” The narrative goes on “This agreement is entered into in connection with JIB City & Guilds. This agreement constitutes a contract of employment and not a contract of apprenticeship.” The narrative continues, “Your employment began on 15.06.2016.” The agreement was signed on 21 June 2016. The agreement further narrated that “This agreement is for a fixed term and will end on or before 31.08.2019.”[2]There are clauses in the apprenticeship agreement relating to training such as the following: i) SKILL/TRADE/ OCCUPATION Under this agreement, you will work for C C Cousins Ltd as you receive training and instruction as a Electrical Apprentice. ii) TIME OFF FOR LEARNING/INSTRUCTION i You will be permitted time away from the workplace during normal working hours in order that you attend courses of instruction that are necessary as part of the apprenticeship. It is a requirement of the continued operation of this agreement that you attend the courses. You may, from time to time, be asked to produce evidence of your attendance. You will apply yourself diligently, both in respect of those courses and during your work, to acquire the skills involved. Should you be removed from the course due to your conduct, this agreement will terminate. iii) EXAMINATIONS AND ASSESMENTS It is a requirement of the continued operation of this agreement that you attend for and pass any examinations and/or assessments (this includes all examinations, tests and assessments that are incorporated into the successful completion of the apprenticeship). You will exercise due diligence in order to pass each examination. Should you fail at first attempt without good reason, you must re--sit the examination. Failure at the second attempt without good reason will result in the termination of this agreement. You must produce for inspection examination results, coursework or other work produced by you as part of the apprenticeship, and any other course related documentation which we may reasonably request.[3]There are also clauses in the apprenticeship agreement which would be expected in a statement of terms and conditions of employment which are not repeated here.[4]In addition to the apprenticeship agreement, an individual learning agreement was also entered into between the claimant, the respondent and a third party, JTL which was signed on 14 July 2016 which confirmed that the claimant would be attending Mid Kent College from 11 September 2016 onwards [59-63], undertaking a Level 3 Electrotechnical Qualification with the respondent. In section 4, the agreed learning start date is 14 July 2016 and the planned end date is 15 September 2020. In section 7, the anticipated completion date for the qualification is 15 September 2020 [60].[5]On 26 January 2019, the claimant was provided with a mobile telephone, a van and worked with less supervision.[6]At the end of the claimant’s third year, the respondent offered him further employment. He was issued with a statement of main terms of employment in August 2019 which confirmed that he would be employed as an Electrical Improver from 1 September 2019 and that his wage would increase to £8 per hour [66-68]. His job title of apprentice did not change on the personnel system [128-129]. This was not a position for a fully qualified electrician[7]Within the fourth year of the claimant’s learning agreement, he no longer had to attend college 1 day per week. It was his responsibility to complete his portfolio and to put the knowledge he had learnt into practice to prove his competency and to evidence this to his assessor at JTL.[8]In mid-2020, the respondent found it necessary to make redundancies. The claimant was selected for redundancy and dismissed [94].[9]JTL told the claimant on 5 May 2021 that the respondent did not notify them that his Apprenticeship Agreement had been terminated [125] in accordance with the Learning Agreement. The respondent did contact JTL following his redundancy to confirm that the claimant had been made redundant [126].[10]In a letter dated 18 June 2021, JTL wrote as follows [126]:[11]“I can confirm that Joshua Lee commenced a government-funded electrotechnical apprenticeship on 14th July 2016 and had an expected end date of 15th September 2020. His employer was CC Cousins Limited, and his training provider was JTL.[12]It is a requirement of the government funding rules that apprentices are employed throughout their apprenticeship and JTL requires that employers confirm that an employment contract has been issued. We would not be concerned if the job title changed as long as it was understood by all parties that the apprenticeship status was continuing until successful completion.[13]We have worked with CC Cousins for many years and they have successfully trained many apprentices with us and we have every confidence that they fully understand their responsibilities towards an apprentice.[14]We understand that, following a period on furlough due to the Covid-19 pandemic, Joshua was made redundant by his employer on 27th August 2020. This was unfortunate as it would appear that Joshua had completed his academic studies and was about 70% of the way to successfully completing his apprenticeship. However, we recognise that this situation will arise, in certain circumstances, when hard business decisions have to be made and a number of our employers have found themselves in similar circumstances as a result of the pandemic.[15]We will always do our best to assist the apprentice and I can confirm that JTL continued to support Joshua and will, as far as is possible within the government funding rules, assist him to complete his apprenticeship.” Submissions[16]The Tribunal heard oral submissions from both parties. There was no reference to any relevant legal principles. The Tribunal found that there is a relevant statutory provision and potentially relevant legal principles.
Law
[17]The Apprenticeships, Skills Children and Learning Act 2009 introduced the requirement for an apprenticeship agreement to be in place when engaging an apprentice under a statutory apprenticeship.[18]The apprenticeship agreement forms part of the individual employment arrangements between the apprentice and the employer; it is a contract of service (la. a contract of employment) and not a contract of apprenticeship. If all the requirements of section 1 of the Employment Rights Act 1996 are complied with, the apprenticeship agreement can also serve as the written statement of particulars of employment. The full requirements for an apprenticeship agreement can be found in regulation A1 of ASCLA and the Apprenticeships (Miscellaneous Provisions) Regulations 2017.[19]The practical period is the period for which an apprentice is expected to work and receive training under an approved English apprenticeship agreement. The practical period does not include the end-point assessment. The end date is when the end-point assessment is due to be completed. Discussion and Decision[20]There was no evidence that this was a statutory apprenticeship. The documents produced do not state that this was a statutory apprenticeship but the structure of the agreement and training contract seem to meet most of the statutory requirements. The apparently contradictory statement of the apprenticeship agreement not being an apprenticeship agreement does meet what seems to be required by the statutory provision.[21]Both the claimant and the respondent recognised that the claimant was in a different category of apprentice in his fourth year but neither party argued that he was a fully qualified electrician which he would have been at the end of his apprenticeship.[22]The Tribunal was naturally hesitant to make a finding contrary to a written document which had been signed by both parties. However, the document was a standard one to the respondent and the claimant had little choice but to sign it if he wished to be an apprentice. For whatever reason, the respondent chose not to address the Tribunal on any relevant aspect of the law but found on the apprenticeship agreement. The Tribunal concluded that the apprenticeship agreement was erroneous as to its term and end date. The apprenticeship agreement should have had a termination date of 15 September 2020 which would reflect the provisions of the learning agreement and the increase in responsibility in the fourth year and end with the claimant becoming a fully trained in September 2020. The provision of a new contract as an electrical improver did not alter his status as an apprentice.[23]What troubled the Tribunal was by what legal mechanism this factual finding would be supported. The contra proferentem rule applies to a document if the terms are ambiguous. There were two documents with different end dates with different parties. This rule may have applied to bring about this result.[24]The Tribunal relied on the aid to construction of contracts in Investors Compensation Scheme 1998 1WLR 896 HL to determine the intentions of the parties. The Tribunal proceeded on the basis that it was the intention of the respondent to be in compliance with the relevant law, accordingly it rejected its submission that the claimant was, from 1 September 2019, a full-time employee for the respondent and this superseded any previous agreements, including the apprenticeship agreement. The intention of the respondent was to provide a valid apprenticeship for a four year period and the claimant intended to work as an apprentice in that period.
Conclusion
[25]In order to be legally compliant, the apprenticeship agreement should have been for four years and sit consistently with the Learning Agreement. The end date of the apprenticeship was 15 September 2020.[26]Due to the complicated nature of the case, it was not possible to deal with the latter issues of case management, a telephone case management hearing will be arranged to do so.
The Law
[1]A dismissal will only be fair in accordance with section 94 of the Employment Rights Act 1996 if it was for one of the specified fair reasons, a fair procedure was followed and this was a sufficient reason to justify the Claimant’s dismissal.[2]Where the reason for dismissal is redundancy, the Respondent must demonstrate that it carried out a fair consultation process with the Claimant. This will include consideration of the appropriate selection pool and the application of objective selection criteria (where relevant), alternatives to redundancy and whether there are any suitable alternative roles for the Claimant.[3]The question then is whether the decision to dismiss fell within the range of reasonable responses which an employer might have adopted. A dismissal will fall outside the range of reasonable responses only if no reasonable employer would dismiss in the circumstances. A tribunal should not substitute its own judgment for that of the employer.[4]The tribunal’s task is to assess the reasonableness of the decision to dismiss against the objective standards of the hypothetical reasonable employer, measured by reference to the band of reasonable responses. Polkey deduction[5]If there was a chance that the claimant would have been dismissed in any event at some point the compensatory award may be reduced. Acas Code[6]The Acas Code of Practice on Disciplinary and Grievance Procedures does not apply to dismissals by reason of redundancy or expiry of fixed-term contracts and so no increase or decrease to any award made will be applicable. Wrongful dismissal[7]Dismissal by an employer in breach of contract will give rise to a wrongful dismissal claim at common law. Dismissal with no notice or inadequate notice where summary dismissal is not justifiable is an example of a breach of contract by the employer. Unfair dismissal[8]Apprentices may also recover damages for loss of future prospects since the purpose of the arrangement is to improve their prospects by providing training and experience. The Court of Appeal in Drunk v George Waller and Son Ltd 1970 2 QB 163 awarded damages for loss of training and diminution of future prospects for two years after his apprenticeship was terminated.[9]The respondent was facing a redundancy situation and there was a reduced requirement for employees to carry out the electrician work. The respondent dwelt on alleged failings in the Claimant’s performance to an extent which concerned the Tribunal. The witness statement provided by Mr Parker is so negative that it would seem to suggest that the real reason for the Claimant’s dismissal was capability. Ultimately, the Tribunal having listened to all of the evidence is satisfied that redundancy was indeed the primary reason for dismissal.[10]However, the redundancy process carried out was flawed. The consultation with the claimant was inadequate both in terms of the manner in which it was carried out and the quality of the discussions with him. The Tribunal recognises that this took place during the pandemic which influenced the choice of virtual meetings rather than face to face ones. However, this does not excuse the Respondent for failing to arrange suitable times and dates to meet with the Claimant virtually when he would be able to give his full attention and avail himself of the right to be accompanied. It was the Respondent’s responsibility to ensure this, not the Claimant’s, and so he should not have been consulted with when driving or when he was on holiday. The Respondent was in control of the Claimant’s workload and should have made adjustments to his duties to ensure he would be available at the time set for each consultation meeting.[11]The very short length of these consultation meetings, as evidenced by the Claimant’s phone records, demonstrated that no more than a cursory attempt was made to consult with him about the redundancy proposal, how the selection pool and criteria had been determined and, how his scores had been calculated. There were in fact only two consultation meetings, the first lasting only 6 minutes, followed by a call to inform him of the outcome of the process. This fell short of constituting genuine consultation with the claimant.[12]The claimant repeatedly requested his scores in writing, together with an explanation of how these had been calculated and, how these compared to the scores given to the other employees in the same pool as him. After several requests, the claimant finally received the scores given to him and the other two employees in his pool. However, he never received a written explanation of how these scores had been calculated. Despite the fact he attended a meeting with Mr Parker, he did not receive a verbal explanation of this from him either.[13]The Tribunal finds that the Respondent’s decision to split the apprentices into two separate redundancy selection pools was within the band of reasonable responses. In any event, it was clear from the evidence that a combined selection pool would have made no difference as the respondent’s decision was to make 4 out of 6 apprentices redundant, with all three of the less experienced apprentices selected for redundancy. Another individual, James Varley was referred to by the claimant, but the respondent’s representative confirmed that he was in fact not an apprentice at the relevant time and was employed as a labourer. He did later enter into an apprenticeship agreement in March 2021. Therefore, his situation did not influence the outcome of the claimant’s redundancy consultation. The decision, as far as the claimant was concerned was always going to come down to a selection between him and the other two apprentices at a similar level of experience to him, the so-called Improvers.[14]The Tribunal finds that the selection criteria originally chosen by the Respondent were fair and objective. The Tribunal finds that it was Mr Parker’s decision to not score the candidates against the length of service criterion which he admitted during cross-examination. The Tribunal accepts that Mr Parker genuinely held the view that this was a less important factor than the skills and experience of the employees. However, the same could be said of the rate of absence and this was not removed as a criterion. The claimant would have received a higher score for length of service than the other two Improvers which would have put him on the same overall score as one of them. This would have led to a tie-break situation which Mr Parker said he wanted to avoid. On the balance of probabilities, the Tribunal concludes that this influenced Mr Parker’s decision to remove this criterion from his assessment so that the claimant would be the lowest scoring employee in the pool and the one selected for redundancy.[15]The Respondent’s representative submitted that the Tribunal should not scrutinise selection criteria and the scoring system in too much detail. However, crucially the respondent has not shown to this Tribunal a fair and objective basis on which the scores were calculated. The Respondent has produced no written records of any learning plan for the Claimant, any monitoring or assessment of his knowledge or skills gained during his apprenticeship. Neither has the Respondent produced any evidence of feedback provided by those who supervised the Claimant and how this compared to their feedback on the other Improvers.[16]Mr Parker maintained in his evidence that the Claimant’s performance was poor but only provided one example of this. The Tribunal finds there is a conflict in the Respondent’s position; on the one hand maintaining the Claimant’s performance was poor, yet on the other hand allowing him to work unsupervised, promoting him to be an Improver and, choosing to furlough the other Improvers but keep the claimant at work. Mr Parker stated that he was giving the Claimant a chance to improve during this period, but the Tribunal finds this explanation unlikely given the pressures on the Respondent at the time which would necessarily be greater when working with a skeleton staff.[17]Mr Parker also referred to the two disciplinary warnings given to the Claimant. This was not relevant to the selection criteria, but the Tribunal finds that they negatively influenced Mr Parker’s assessment of the Claimant and the scores he awarded to him for knowledge and skills. Taking that all into account, the Tribunal concludes that the Respondent acted outside the range of reasonable responses with regards to determining the selection criteria, the scores given to the Claimant and, the inadequate consultation carried out with the Claimant. The Claimant’s dismissal was therefore procedurally unfair.[18]Having made that determination the Tribunal must go on to consider whether any deduction to the compensation awarded to the Claimant should be made in accordance with Polkey, on the basis that the Claimant’s dismissal would have happened in any event, had a fair process been followed by the Respondent. The Tribunal finds that had a fair process been followed either the Claimant or, the employee whose score was closest to his, would have been selected for redundancy. The Tribunal therefore finds that there is a 50% chance the Claimant would have been dismissed in those circumstances and therefore any compensation awarded to him for unfair dismissal should be reduced by 50%. Breach of contract[19]Moving on to the Claimant’s breach of contract claim, the Tribunal has found that the claimant was intended to be employed under a statutory apprenticeship agreement. However, the agreement did not meet all of the relevant statutory criteria. In particular, the apprenticeship agreement signed on the 21st June 2016 (pages 50-51) was not updated to reflect the actual qualification, framework or completion date of the apprenticeship that the Claimant was undertaking, hence it did not satisfy the relevant statutory requirements in accordance with the Apprenticeships, Skills, Children and Learning Act 2009, Part 1, Chapter 1, Section 32.[20]On the 14th July 2016, the Respondent and training provider also signed a financial agreement (pages 52-56) detailing the financial arrangements between them during the apprenticeship. The document indicated that the Respondent obtained grants to fund the apprenticeship via the Skills Funding Agency even though the apprenticeship agreement did not satisfy the funding rules sections 41-44.[21]The Tribunal considers that the evidence demonstrates that at the outset the parties intended to enter into a fully compliant statutory apprenticeship agreement and that the errors identified were of a minor nature, being of form more than substance. Had the situation remained as such by the time of the Claimant’s dismissal, the Tribunal would have held that the Claimant’s breach of contract claim must be determined on the basis of the claimant being employed under a statutory apprenticeship agreement.[22]However, in August 2019, the Respondent changed the basis on which the Claimant was employed. The Claimant was issued with a contract of employment in the role of Electrical Improver (pages 60-62). The Respondent asserted in its ET3 Response that the claimant was not an apprentice from 1 September 2019 onwards. The Tribunal has already found at the Preliminary Hearing on 24th March 2022 that the Claimant remained employed by the Respondent as an apprentice. However, the Tribunal finds that the statutory apprenticeship agreement no longer subsisted and that from 1st September 2019 onwards the Claimant was employed under a contract of apprenticeship.[23]Therefore, the Respondent was not contractually entitled to unilaterally terminate the Claimant’s apprenticeship early. The Tribunal finds that the Respondent made a commitment to employ the Claimant for a four-year fixed period and that his end date was 15 September 2020. The Claimant received 4 weeks’ notice of termination and his employment ended on 22 August 2020. The Claimant is entitled to compensation for wrongful dismissal for the period from 23 August 2020 to 15 September 2020 inclusive.[24]The Claimant submits that his period of employment under the apprenticeship agreement would have been extended, in light of the pandemic, to enable him to qualify. It is possible this would have happened, considering that the other two Improvers remained apprentices for a further extended period. However, the Respondent was under no obligation to extend the four-year period and so the Tribunal cannot award damages for wrongful dismissal in respect of this.[25]The Claimant is also seeking damages for diminution in his future prospects as a result of the failure on the part of the Respondent to allow him to complete that apprenticeship. This is one of the rare occasions when such damages can be awarded by the Tribunal. The Claimant has given evidence that as a result of his dismissal and the failure of the Respondent to provide him with a suitable range of supervised work or sign off his portfolio, he had to repeat the fourth year of his apprenticeship. The subsequent delay in him qualifying reduced his income for that period.[26]The Tribunal finds that the Claimant's completion of his apprenticeship would have been delayed in any event due to the impact of the pandemic by approximately 6 months. However, his dismissal and the Respondent's other breaches of contract led to the Claimant qualifying a year later than the realistic end date of his apprenticeship had he remained employed. The Tribunal's decision is that the Claimant is entitled to damages reflecting the reduced pay he received during that year. Although the Claimant asserted that this has continued to impact his pay no evidence of this was provided and so the Tribunal makes no award in respect of any further period.[27]Remedy[28]The Claimant is entitled to a basic award for unfair dismissal calculated on the basis of his length of service, age and weekly pay. However, as he received a statutory redundancy payment, his basic award is reduced to zero.[29]The Claimant is awarded damages for wrongful dismissal in respect of the remaining period of the contract from 23 August to 15 September 2020. The Tribunal adopts the Claimant's calculation of this which is £1463 plus £48 for employer pension contributions, less income received during this period from other employment in the sum of £850. This gives a sum of £661.[30]The Claimant has earned more than he was paid by the Respondent since the end of his contract of employment and therefore is not entitled to any compensation for financial loss. The Claimant is awarded £400 for loss of statutory rights. This is subject to a Polkey deduction of 50% giving a sum of £200.[31]The Claimant is awarded damages for diminution of his future prospects for a period of one year. The Tribunal assesses this as being £13,000 plus loss of pension contributions of £390 giving a total of £13,390.[32]The Claimant's total award is therefore £14,251. Preparation Time Order[33]The Claimant made an application for a preparation time order in respect of the time spent preparing the case for hearing. Costs do not “follow the event” in the Employment Tribunals and so a preparation time order may only be made in accordance with Rule 76. Applying this test the Tribunal's decision is that the Respondent did not act vexatiously, abusively, disruptively or otherwise unreasonably in defending the proceedings and nor can it be said that the Repondent's defence had no reasonable prospects of success. Therefore as the threshold has not been met the Tribunal does not need to go on to consider whether a preparation time order should be made.