Flett v. Matheson [2005] UKEAT 0516_04_0903 (9 March 2005)

JUDGMENT (4) MR D SIMMONS © Copyright 2005 APPEARANCES For the Appellant MS LAURA KELLY (Representative) For the Respondent MR ADAM OHRINGER (of Counsel) Instructed by: Messrs Bhogal Lal Solicitors 51-53 High Street Hounslow Middlesex TW3 1RB Amicus Curiae MR PAUL BROWN (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS SUMMARY Contract of Employment Apprentice found by the Employment Tribunal not to be working under a contract of apprenticeship or a contract of employment. It was plainly wrong as to the latter. The Modern Apprenticeship arrangement under which he was working was not a common law contract of apprenticeship, which will not apply where there is a tripartite agreement involving a training provider i.e. where the training responsibility is not that of the employer. It does not have the necessary requirements of a fixed term of apprenticeship binding both employer and apprentice, and an obligation on the employer to ensure that the apprentice is trained. The proper construction is more likely to be that an ordinary contract of employment is overlaid by a training contract, and is terminable on reasonable notice, geared to a reasonable time to find a new employer with the assistance of the training provider. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal in relation to the law as to the employment of apprentices, by the Applicant, Mr Flett, against the Decision of the Employment Tribunal at Newcastle upon Tyne, after a hearing on 11 December 2003, in Reasons handed down on 28 April 2004. The Applicant made a number of claims before the Employment Tribunal against, at that stage, three Respondents. Those Respondents were the First Respondent, EAB Electricals ("EAB"), for whom the Applicant had in fact worked for some time in 2002. The Second and Third Respondents were joined because there had been, as it was concluded, a TUPE transfer of the business of EAB to either the Second or Third Respondent. In the event, the conclusion of the Employment Tribunal was that the Applicant was entitled to a declaration that the First Respondent had failed to inform and consult him, in accordance with regulation 10 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 , and that that liability transferred to the Third Respondent, which was ordered to pay to the Applicant the sum of £1,074.70. That was the first of the Applicant's claims, and to that extent he succeeded. The Applicant also made a claim that he was unfairly dismissed and/or his contract of employment had been breached; and had he succeeded in that regard in respect of a claim, the liability of EAB would have transferred similarly to the Third Respondent. The Tribunal dismissed those claims, finding that there was no contract of apprenticeship, which was what was urged upon the Tribunal by the Applicant, and also no contract of employment. As a result, there was no jurisdiction to entertain the Applicant's claim for breach of contract, because there was no contract of apprenticeship and no contract of employment, as the Tribunal found, falling within the definition of section 42(1) of the Employment Tribunals Act . That section is the interpretation section of the Employment Tribunals Act 1996 , and provides that: ""contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing" It would seem that the Tribunal concluded that there was some contract between the Applicant and EAB, but, whatever that contract was, in the view of the Tribunal it was neither a contract of apprenticeship nor a contract of employment. Hence the Applicant's claim was dismissed. So far as the remedy which the Applicant was seeking is concerned, the primary case, namely that the Applicant was working under a contract of apprenticeship, which was put forward on his behalf, as we understand it, by his mother, who was primarily running the case on his behalf, was based upon the well-known authority of Dunk v George Waller & Son Ltd [1970] 2 QB 163. That was a case which, re-establishing and re-emphasising old authority, clarified the difference between a traditional, medieval agreement of apprenticeship from an ordinary contract of employment; and the Court of Appeal in that case, per Lord Denning MR, with Widgery and Karminski LJJ, concluded that, in respect of a breach of such an agreement, being in that case one for four years, there was recoverable, by the apprentice, not only damages by the failure by the employer to complete the contract until the end of the four year term (no doubt subject to mitigation, although in that case the trial judge awarded nominal damages only, on the basis, seemingly, that such loss had been mitigated), but, in addition, the loss of the benefit of the training for which the apprentice had stipulated, and consequently, at any rate arguably, substantial continuing loss by virtue of the loss of the opportunity for the apprentice to go out into the market, stamped with the seal of approval of the relevant master. It was that which, of course, constituted the bulwark of the old master and apprenticeship system; namely, that a master would take on an apprentice for a fixed term, either four or five years, and the apprentice would agree to serve that term, and would emerge, trained and educated by that master, and carry into the relevant market the reputation of being an apprentice with that particular master's training. With that in mind, it would seem the claim, which was put forward on behalf of the Applicant, was for a very substantial sum of money, indeed one of £50,459.83, with an alternative figure of £53,824.80. That was the claim based upon the case of apprenticeship. If, contrary to that primary contention, the Applicant was only employed as an ordinary employee, the way that the case appears to have been put, either expressly or impliedly, was that there would only be one week's notice of termination. That was the relevant term of the ordinary terms and conditions of employees working for EAB, who had not yet worked for long enough to acquire greater security. The Employment Tribunal recorded in its findings at paragraph 20 of its Decision: "The decision is unanimous. The status of Mr Flett determines what he can claim in damages. He was dismissed without notice. If he was an employee he is entitled to one week's notice. If he is an apprentice he is entitled to damages in respect of the period of his training and any losses sustained as a result of not being able to be trained." We have had the benefit of representation before us, not only on behalf of the Applicant as Appellant, by Ms Laura Kelly, who is, as we understand it, a student officer in the Law Faculty at the University of Northumbria, but on behalf of the Third Respondent by Mr Adam Ohringer, of Counsel, and by Mr Paul Brown, of Counsel, as amicus curiae . How that came about was as follows. The preliminary hearing of this appeal came before this Tribunal, differently constituted, chaired by Bean J, when this matter was allowed through to appeal, and the Tribunal dismissed a number of other grounds of appeal which have not been before us while doing so. In concluding that there was only the one point of law before us, as to whether the agreement under which the Applicant worked was a contract of employment for the purposes of section 42(1) of the Employment Tribunals Act 1996 , and if so whether it was a contract of service or a contract of apprenticeship or, as the Tribunal found, neither and thus not within that section, Bean J directed that the Secretary of State be informed that this appeal was to be set down for a full hearing, and be invited to submit a skeleton argument, and be represented at the hearing of the appeal, if thought fit. It seems to us clear, that what Bean J intended was that it should be the relevant Ministry (seemingly the Department of Education and Skills ("DES")) which would instruct counsel, not least because it was then, as we suspect, anticipated that it was possible that neither party would be represented at the appeal, neither having been represented at the preliminary hearing, which was dealt with, in those circumstances, on the papers, so that the DES would have the opportunity of laying before this Appeal Tribunal its views and submissions on this subject. The relevance of the DES is this: that what has been called the "Modern Apprenticeship Scheme" has evolved over recent years as a result of Government sponsorship of the increasingly collectivised arrangements made in a number of different industries. So far as the electrical industry is concerned, there is the Joint Industry Board (the "JIB"), which, among other things, now supervises training across the board in the electrical field, and is responsible for issuing relevant qualifications. There are, we understand, similar boards in other industries, one of which is, or at any was in 1995, called the Engineering and Construction Industry Training Board, which was the relevant body referred to in the case of Wallace v CA Roofing Services Ltd [1996] IRLR 435. But, at any rate since the Learning and Skills Act 2000 , all such training has been funded by the Government, through, we believe, the DES; and it was no doubt in the mind of Bean J that information as to the picture could be given by the Department, and, at the same time, any particular interest which the Department would urge upon this Appeal Tribunal could be put forward. One such interest might have been that which was mentioned by this Appeal Tribunal, presided over by Wall J, in Thorpe v Dul (No.1) [2003] ICR 1556 (" Thorpe(No.1) "), namely that it might be a policy matter for the Department if decisions of the court were such as to discourage employers from coming forward to take part in these schemes. The Department has not been represented, in circumstances to which we shall refer, and consequently any such policy questions have not been laid before us, except very indirectly. What has occurred is that the Treasury Solicitor has instructed Mr Paul Brown, of Counsel, to whom we have referred, as amicus curiae , to assist us on the law on the more usual basis that it was then anticipated that, in relation to this important question, the EAT might well need such assistance, particularly if it were the case that neither party were represented. We have been indebted to Mr Brown, not only for his research into the law, but also for his production of certain documents, to which we will refer. Those documents are not strictly relevant or admissible, because none of them were before the Employment Tribunal. We have, however, without objection from any other party, looked at them, and they do help, perhaps, to paint a little of the picture which we might otherwise have obtained from Counsel specifically instructed by the DES. But Mr Brown has made it quite clear that he has no such instructions, and has not sought to fill any wider role, save for the provision of such documents, than that ordinarily filled by an amicus curiae on points of law. We turn then to consideration of the appeal, against that background; and it can be seen, immediately, from our description of what it is that appeared to be at stake before the Employment Tribunal that this case is, in fact, all about remedy, not substance. It cannot have mattered to this Applicant, or those advising or supporting him, whether his case fell within the medieval common law concept of a contract of apprenticeship, or something different. What was at stake was whether, if it did, it carried with it the very substantial remedies he was asserting, whether or not, of course, in the event, those would have been recoverable even on a proper application of the rules contained in Dunk . It is wholly clear that the Appellant, Mr Flett, was working for EAB under a contract, even prior to his entering into a tripartite, individual learning plan ("ILP"), which was produced before the Employment Tribunal. That document was signed on 10 September 2002, which is stated in the body of the document to be his "learning start-date". It is a tripartite document, and the three parties to the agreement, the ILP, were Mr Flett, who was then aged 17, as apprentice, EAB, described as "the Company", and a Training Provider called JTL. Of JTL, all the Tribunal knew, and we know very little more, is that it is a company and a registered charity, with a head office in Orpington, and a Mission Statement "To deliver a high quality, value for money, comprehensive training service to meet industry and individual needs". It is apparent from the literature, which was attached to a letter sent to Mr Flett's parent/guardian dated 31 January 2003, which was in the bundle, that JTL is a Government-funded and supported body, which is under the aegis of, amongst others, the Learning and Skills Council and the JIB, responsible for providing the training to apprentices, at any rate in the electrical field, such as the Applicant. JTL is described in the ILP as "Training Provider". There is a reference to such an entity in other documents as a "training agent". As we have said, the Applicant started working for EAB in January 2002, eight months before his signature of that tripartite arrangement; and there is no evidence that he was then anything other than an employee of EAB. What is seemingly said to have occurred is that a contract of employment between him and EAB, if such it was, turned into something different with the signing of the ILP. This is said to have occurred by reference to what we have referred to as the traditional and ancient, medieval concept at common law of a contract of apprenticeship. Such contract can be traced back to the days of guilds and indentures; and, as it seems to us, it had three important aspects, which are not present in the modern arrangement, at any rate insofar as that modern arrangement appears before us. There has been a description of what is called a "Modern Apprenticeship". On the basis of the limited evidence that was before the Employment Tribunal, and is before us in this case, we cannot and do not intend to reach any conclusion about every Modern Apprenticeship; but we can certainly draw sufficient conclusions in relation to any similar arrangement to that entered into by the Applicant in this case, of a tripartite nature, such as we have described. In Regulation 12 of the National Minimum Wage Regulations 1999 , there is the following provision: (2) A worker who- … (b) is employed under a contract of apprenticeship or, in accordance with paragraph (3), is to be treated as employed under a contract of apprenticeship… does not qualify for the national minimum wage in respect of work done for his employer under that contract. (3) A person is to be treated for the purposes of paragraph (2)(b) as a worker who is employed under a contract of apprenticeship if, and only if, he is - (a) a worker within the meaning given by section 54(3) of the Act; and (b) engaged - (i) in England or Wales, under the Government arrangements known…as National Traineeships, Modern Apprenticeships, Foundation Modern Apprenticeships or Advanced Modern Apprenticeships" Mr Brown, before us, supported by Mr Ohringer, suggested that it could be derived from that Regulation that, without the deeming provision of that regulation, a Modern Apprenticeship, such as we are here considering, would not have otherwise qualified for the definition of contract of apprenticeship, and thus had to be specifically so deemed in order to come with the exception under 12(2)(b) to the National Minimum Wage Regulations 1999 . That may well be an indication that can be drawn from that Regulation, which would support the proposition that a Modern Apprenticeship does not fall within the common law concept of a contract of apprenticeship. But we use that only as a starting point for our consideration in this case, and do not regard it as determinative. Looking at the evidence of the modern arrangement that is before us, we have the ILP, to which we have referred, and the Employment Tribunal also had a document called the JIB Training Scheme for Electrical Installation Apprentice Craftsman and Technicians, the 1983 Apprenticeship Scheme or Training Scheme. In the preface to that document, it specifically states: "The JIB 1983 Training Scheme is a Modern Apprenticeship and must conform to the requirements of such a Scheme. Attention is drawn to the Annual Funding Agreement between the Secretary of State for Education and Employment and the Training and Enterprise Councils which specifies: "Except where the Secretary of State agrees, an Apprentice shall not be expected to contribute financially to the cost of the Apprenticeship, other than by using a Youth Credit or where the Apprentice is in receipt of a Career Development Loan." It is apparent that this Modern Apprenticeship, under the 1983 Scheme, was then, and subsequently since 2000 continued to be, one of those funded by the Government. Although funded by the Government, it appears to be an important basis, at any rate of this Scheme, that the employer pays the apprentice. That was the document that was before the Employment Tribunal, which both parties persuaded the Employment Tribunal was the relevant document for the Tribunal to look at, notwithstanding the express doubts of the Employment Tribunal in that regard, which are set out in paragraph 11 of its Decision, arising out of the fact that the Scheme said as follows: " Note: No further registrations were accepted onto this Scheme after 1 st January 1999 as it was replaced by the 1999 JIB Training Scheme…" The diligence of Mr Brown has turned up what plainly must have been the relevant Training Scheme, on any basis in those circumstances, applicable to the facts of this case, being the 1999 JIB Training Scheme; and although that was not before the Tribunal, we have concluded, and again without opposition from the parties, that it was appropriate to look at it and bear it in mind. The course that we have concluded is most sensible is to bear the terms of both the 1983 Scheme (which the Tribunal was persuaded was the relevant one, but which does not appear to have been so), and the 1999 Scheme (which does appear to have been the relevant one, but which was not before the Tribunal). Drawing, however, as we do from those three sources, the ILP, the 1983 Scheme, and the 1999 Scheme, we can seek to appreciate sufficiently, for the purposes of this judgment, the content of the modern arrangement; and it appears clear to us that there are at least three aspects in the old common law contract of apprenticeship which are not present in the Modern Apprenticeship or the modern training arrangements: (i) The apprenticeship was, or was ordinarily, for a fixed term. It is right to say that in the ILP there is a provision which has "Learning start date", as we have indicated, "10/9/02" and "Duration of Training – 42 months". But it is plain, in our judgment, not least in the light of the other terms of those documents, that this does not constitute a 42 month fixed-term contract, even though, or perhaps because, the words "Anticipated Completion Date 9/12/06" are then inscribed on the ILP. (ii) As a result of the apprenticeship being for a fixed, usually four-year, term: (a) the employer agreed to employ the apprentice for such fixed term, or for the duration of the apprenticeship; (b) the employee agreed to remain apprenticed for such period; in both cases subject to certain, limited get-out arrangements. (iii) Fundamentally, the employer had an obligation to educate and to train, and, effectively, to secure, subject to the get-out arrangements on both sides, the required qualification for the apprentice then to take into his full-time career. As was described by Dunn LJ in the Court of Appeal decision in Wiltshire Police Authority v Wynn [1980] ICR 649 at 660A, "the essence of an apprenticeship is to qualify the apprentice for his particular trade or calling." Such, therefore, was not a question of an employer giving an opportunity for the apprentice to be trained, but of its adopting and accepting a responsibility to teach/train the apprentice. It is quite plain that these aspects are not present in the Modern Apprenticeship Scheme, at any rate as constituted by the documents, above referred to, relevant in this case, and for which funding is provided by the Government, pursuant to the Learning and Skills Act 2000 . It is quite clear that the employer is not responsible, even vicariously, for the provision of sufficient training to enable the employee to become qualified. What the employer must do is to provide a full opportunity for access to education and training to the trainee, to allow assessment of the trainee while at work, and usually, if not invariably, pay the trainee while he or she attends at a course or college. The qualification, however, is not provided by the employer, but by a central body, in this case the JIB. This can be seen by brief consideration of the documents before us. Looking first at the 1983 JIB Scheme, the provision, so far as concerns a junior apprentice, is as follows: "This period of training will incorporate the 12 weeks' off-the-job practical training and 12 weeks college-based technical education leading to either the NVQ Level 2 – Installing Electrical Systems and Equipment or the NVQ – Installing Electrotechnical Systems…" and then the way in which those qualifications can be achieved is set out. Those qualifications are, of course, all given by the JIB or the central body, and the curriculum for that qualification is specified by the JIB. Similarly, under 1.5 in relation to senior apprentice: "The Senior Apprentice (Stage 1) shall be provided with a further period of paid day release (or block equivalent) to prepare for the City & Guilds 2360 Electrical Installation Theory Part 2 Certificate examination coupled with practical site experience." The new 1999 Scheme, which, as we have indicated, is in fact the more relevant one, certainly for the purposes of our consideration of any guidelines for future cases, is even clearer. That has a specific provision relating to training agents. By clause 3.2, the Scheme recites as follows: "The Scheme will be operated by Training Agents registered with the Joint Industry Board for the Electrical Contracting Industry (JIB). The Training Agent can be a training provider, employer or any other organisation capable of ensuring that the Scheme is properly delivered and monitored. In most cases the Training Agent will be JTL, the industry's training body [and that is where we get our further information about JTL]. Other Managing Agents responsible for contracting with Training and Enterprise Councils (TECs) or other funding bodies, employers or training organisations may also apply to be registered as Training Agents. The full responsibilities of the Training Agents are set out in Section 10." By clause 3.7, there is the provision in relation to the JIB Apprentice Logbook. There is a reference to what we assume to be that document in the 1983 Scheme, under the heading "1.7(d) Field Evidence Records". The provision in relation to the JIB Apprentice Logbook, which is said by the 1999 Scheme to be "an essential and integral part of the training and assessment process", is this: "Entries in the JIB Apprentice Logbooks are signed off by Workbased Recorders to certify that the entries are valid and have been carried out to an industry acceptable standard. Workbase Recorders must be suitably graded or technically qualified to make such a judgment, e.g. the supervising electrician or college lecturer. Each part of the JIB Apprentice Logbook has an Attainment Statement that has to be signed by the Employer when the Apprentice has successfully completed all sections. These are then forwarded to the Training Agent for formal NVQ assessment against the requirements of the standards." And there are provisions in relation to the obligations of apprentices and obligations of employers: "Employers, with the assistance of qualified assessors provided by the Training Agent, are obliged to ensure that the JIB Apprentice Logbooks are correctly and accurately completed in accordance with the requirements detailed in the Logbook." The completion of the apprenticeship is provided by clause 3.9 of the 1999 Scheme to be when the JIB issues the apprentice with a completion certificate and an ECS Card/JIB Grade Card. The provisions in relation to Training Agents is set out at 3.10, and this must be the section 10, referred to in section 3.2. "TRAINING AGENTS The scheme will be operated by Training Agents who will be required to register with the JIB. The role of the Training Agents will include: … (d) liaising with Employers and providing progress reports on Apprentices … (f) providing a mechanism by which disputes or complaints involving the Apprentice or Employer can be dealt with. In all cases the Apprentice should be given the right of representation, which may be the local Amicus Regional Officer…" So far as the ILP is concerned, the recital in that document is as follows: " [The] Individual Learning Plan outlines a programme of training agreed between JTL and/or the Company and the Apprentice, which will be carried out under Advanced Modern Apprenticeship arrangements. The apprentice shall have unrestricted access to information on the arrangements. The Apprentice is employed by the Company named in Section 2. It is underwritten by the Training Agreement and sets out what the Apprentice is aimed to achieve during his/her apprenticeship. It will also be used to review progress." It states that the apprenticeship is funded by the Learning and Skills Council, and centrally, at section 14, there is the provision in relation to assessment. There are four different boxes in relation to the various qualifications, one of which is "Key skills" in respect of which the assessor is the College tutor at a named college. The only place in which there is reference to the employer premises is in relation to the qualification for NVQ 3, where the assessment location is described as "Employer premises / site / college". The assessor is stated specifically to be "Suitably qualified JTL training officer / NVQ assessor". It is, in those circumstances, clear, in our judgment, that there is a tripartite arrangement: first, between the trainee and the employer; secondly between the trainee and the training agent; and thirdly between the training agent and/or the JIB and the employer. This is completely different from the traditional apprenticeship agreement, as described by Dunn LJ (above), and falling within the seminal case of Dunk , where, as we have said, the employer was not entitled to terminate the contract prior to the end of the four-year apprenticeship agreement, and was to pay damages to the employee, not only for the loss of earnings during the balance of that agreement, but also, potentially, for the diminution of his future prospects by the loss of the benefit of the training for which he had stipulated. In Dunk , at 169 B-C, Widgery LJ said as follows: "A contract of apprenticeship is significantly different from an ordinary contract of service if one has to consider damages for breach of the contract by an employer. A contract of apprenticeship secures three things for the apprentice: it secures him, first, a money payment during the period of apprenticeship; secondly, that he shall be instructed and trained and thus acquire skills which will be of value to him for the rest of his life; and, thirdly, it gives him status, because the evidence in this case made it quite clear that once a young man, as here, completes his apprenticeship and can show by certificate that he has completed his time with a well-known employer, this gets him off to a good start in the labour market and gives him a status the loss of which may be of considerable damage to him." In the only subsequent reported case put before us in which the court has found the existence of a common law contract of apprenticeship, Wallace , to which we referred above, there was, so far as we can see, no evidence of any tripartite agreement. There was also, as is stated in paragraph 6 of the judgment of Sedley J, "common consent" that there was a four-year term of the contract; and the only description we have of the basis on which outside training was to come in was in that same paragraph, when it was related that the Company also sent him on day release, one day a week, to study for his City & Guild exams. Where there is an obligation upon the employer to train, teach and enable qualification, and upon the employee to attend, receive training and work for the same period, with or without a deed of indenture, such as would originally have been required but was not required in Wallace , there is room for Dunk -type damages. This is, plainly, not such a case. We are satisfied that what this is is an opportunity given for training by the employer, in the setting, to which we have referred, of the three series of obligations: the agreement between the employer and the employee, under which the employer gives access to training to the employee and pays the employee, and the employee agrees, subject to the very substantial commitment that the employee has to take part in that training, to work for the employer, when not otherwise committed: but there is then also an important training obligation between the employee and the training provider, in this case JTL: and then there is the agreement between the employer and the training provider and/or JIB. Just as this is plainly not a case of a common law contract of apprenticeship, nor, in our judgment, was that in Whitely v Marton Electrical Ltd [2003] ICR 495 , a decision of the Employment Appeal Tribunal, with which, to that extent, we disagree, although the facts in that relatively short decision are not entirely clear because there was a tripartite agreement in that case (the third party being a TEC – a local training and enterprise council). In Whitely , the employer had, unlike the traditional employer of an apprentice, no control over education and training (see paragraph 8 of the judgment of Mr Recorder Underhill QC). The only answer given was contained in paragraph 10 of that judgment: "There is the further point that the risk that the obligation might prove onerous if the employer suffers an unexpected downturn in work is mitigated by clause 4.5 of the pact, which provides that "if the employer is unable to complete the Apprenticeship, the TEC shall liaise with the employer and/or training supplier to assist in finding the Apprentice the opportunity to complete his or her Apprenticeship elsewhere."" That is indeed what happened in the present case, although the process took some weeks. The very existence of that role for the TEC in that case appears to us to undermine the suggestion of the five-year obligation of the employer. One notes in another case what was said in paragraph 15 of the judgment of the Employment Appeal Tribunal, given by Judge Ansell in Thorpe v Dull (No.2) (EAT/0041/04 & 0042/04, 6 September 2004) (" Thorpe (No.2) "): "Mr Thorpe told us today that he was assured by the Council that should there be a problem with the apprenticeship the college or the partnership running it would make sure that another apprenticeship was found for the employee." In our judgment it is quite clear that the modern tripartite apprenticeship arrangement, in which the employer provides the opportunity for work experience, whilst the training is done under the auspices of and/or by a training agent or provider and/or a college or council, is not a common law contract of apprenticeship. The question, in our judgment, is not what the contract is called, but, given that even a contract of apprenticeship would be covered by employment protection (see section 42(1) of the Employment Tribunals Act 1996) , simply whether there is a contract of employment, and, if so, what are its terms. It is manifest that there was here a contract of employment, and not just because the Appellant was already employed by EAB before the training arrangements started. Every incident indicating employment seems, notwithstanding the paucity of evidence, to have been present and to have continued during the training period; and the relevant documents redound with employer, employee and terms and conditions of employment. There is little doubt that the Appellant was working as an employee, and receiving wages as such. The Employment Tribunal, which does not explain its reasoning for the conclusion that there was no contract of employment, may have been led into error by a combination of two matters. First, it referred specifically to the decision of the Employment Appeal Tribunal per Wall J in Thorpe (No.1) . That decision was that there was neither a contract of apprenticeship, nor, on what was before it, a contract of employment. But what the Appeal Tribunal in that case was, on any close analysis, doing was, while certainly ruling out the former, only ruling out the latter on the facts as known to it; and remitting the position for further consideration by a subsequent Employment Tribunal. That subsequent Employment Tribunal, as can be seen from Thorpe (No.2) , concluded that there was a contract of employment. The second of the sources of misunderstanding by this Tribunal may be that the Employment Appeal Tribunal in Thorpe (No.1) was led to believe that the employer did not pay any wages; and that was a part of its, understandable, conclusion that there was no contract of employment. That misunderstanding was corrected in Thorpe (No.2) , but it may be that this Tribunal did not appreciate that, or its significance. Whatever may be the reason for the error by the Employment Tribunal, it is plain that it was in error in concluding that there was no contract of employment. We are entirely satisfied, however, that it was correct in concluding that there was not a contract of apprenticeship. To conclude that there was not a contract of apprenticeship, but that this example of a Modern Apprenticeship agreement was a contract of employment, does not, however, in the ordinary case, end matters. As it happens, in this case it is, and has to be, conceded by the Appellant that if there was a contract of employment, the Appellant was entitled only to one week's wages. This is how it was apparently argued below (we have already referred to paragraph 20 of the Employment Tribunal Decision) and how it is now claimed, as it must be, given the principles of Kumchyk v Derby City Council [1978] ICR 1116 , which are followed by this Appeal Tribunal, but in any event, as is clear from paragraph 19(ii) of the Appellant' skeleton argument, and has been confirmed before us by Ms Kelly. We cannot, therefore, reach any other Decision in this case, than that if there was, and we are satisfied there was, a contract of employment, one week's notice pay is all that was due. However, in another case, there would need to be, and could be, argument as to the term of the agreement between the employer and the trainee, which forms part of the tripartite training arrangement, ie its duration and terminability. Whatever may have been the position of the contract of employment in a case where a trainee was already working with the employer, does the onset of the tripartite training / Modern Apprenticeship arrangement impose its own term as to duration or terminability, to supplement or override whatever may be the position in the original contract, in this case, one week's notice? We are satisfied that it does. Hence, in any future case where the applicant is not, as in this case, bound by the way that the matter was argued below to restrict himself to a claim in respect of the precise period of notice under what would otherwise be or had been his contract of employment, we are satisfied that the case is available to establish that there is a special context for a training contract, such as a Modern Apprenticeship arrangement, which does affect, or at any rate may affect, the terminability of what would otherwise be a simple contract of employment without the training overlay. In the 1999 JIB Scheme, there is reference at paragraph 3.6 to "conditions of employment… as laid down in the JIB National Working Rules". But we have no information as to what they consist of, or, indeed, whether they have any relevance to this question. We shall assume that there are no express provisions as to the terminability of the training, or of any part of the tripartite arrangement, and must therefore look to the terms of the documents before us to arrive at a conclusion as to whether, in another case, it could be argued and established what the term or terminability of such contract would be, if it was not the limited notice period, otherwise prescribed by a simple contract of employment. We are satisfied that, in the ordinary case, the imposition of a Modern Apprenticeship arrangement upon an existing employment, or the commencement from scratch of a Modern Apprenticeship arrangement of this tripartite kind, would introduce a different term from the ordinary specified terms of an employment contract. We look at the 1983 Scheme, and take the opportunity to look also at the 1999 Scheme, to see what assistance we can derive from the express terms of those Schemes. In the 1983 Scheme, clause 1.7(e) provided as follows: "Transfer In the event of Apprentice not giving, or obtaining, satisfaction with the progress of the training, the Employer or Apprentice shall have the right to apply to the Training Group for transfer to another Employer to continue the Training." In clause 3.11(e) of the 1999 Scheme, that clause is expanded, but remains relatively simple: "Transfer In the event of an Apprentice not giving, or obtaining, satisfaction with the progress of the training, the Employer or Apprentice shall have the right to apply to the Training Agent for transfer to another Employer to continue the training." In the old Scheme, under the heading "Redundancy", 1.7(f) provided as follows: "An Employer may not discharge nor declare redundant an Apprentice because of lack of orders. The Employer may, with the consent of the Apprentice and Guardian, apply to the Training Group to find another Employer willing and able to continue the training but until such a transfer has been arranged and registered with the JIB, the present Employer remains responsible for ensuring that all of the obligations to the Apprentice are fulfilled." In the new Scheme, the similar provision at clause 3.11(f) is this: "An Employer should not normally discharge nor declare redundant an Apprentice because of lack of orders. The Employer may, with the consent of the Apprentice and Guardian, apply to the Training Agent to find another Employer willing and able to continue the training but until such a transfer has been arranged and registered with the JIB, the present Employer remains responsible for ensuring that all of the obligations to the Apprentice are fulfilled."# The old provision under the heading "DISCIPLINE" in 1.12 read as follows: "An Apprentice who commits industrial misconduct or otherwise misbehaves will, after due enquiry, render himself liable to suspension without pay for a period of from 3 to 14 days or, in extreme cases, to dismissal, either with or without notice or pay in lieu of notice. In any interview which could result in the dismissal of the Apprentice every endeavour should be made to ensure that the parent or guardian should be present." The new clause (3.13) is headed, more neutrally, "Termination of Apprenticeship"; and it reads: "The Scheme has no natural break points and is reliant upon progression through various stages of assessment. Any termination of the apprenticeship is therefore dependent upon the Employer's judgment of the Apprentice's application and capability to complete the Scheme. The apprenticeship may be terminated by the Employer if the Apprentice is unable, due to lack of application and/or capability, to attain the required industry standard to progress through the stages of the Scheme. Satisfactory progress requires the continued completion of the JIB Apprentice Logbook. Such action can only take place if the Employer has met the requirements of full involvement in and commitment to the apprentice's training and assessment process and after due consultation with, and warnings to, the Apprentice. Prior to making any decision to terminate the apprenticeship, the Employer must involve the Training Agent, the parent or guardian and, where the Apprentice is a member of Amicus, the local Amicus Regional Officer." Leaving aside the question of termination for cause, which may or may not be more difficult in such a training contract than in relation to a simple employment without the overlay of training, the question will be whether and how the contract can be otherwise terminated and/or how long it will otherwise last. This is a context in which it might possibly be relevant to consider the disincentive for employers to join the Scheme if they are unable to disembarrass themselves of a trainee, even when they are otherwise laying-off, or making redundant, other employees. The answer must lie in the obligation of what, in the 1983 Scheme, would be that of the Training Group, and which, in the ILP and/or the 1999 Scheme, would be that of the Training Provider or Training Agent and/or the JIB, to find another employer for the apprentice. We know nothing, in this case, of the existence of this obligation, or its nature, if it exists, as we believe it ought, as an implied, if not express, term in the two parts of the tripartite agreement, to which we have referred above; namely, the second part, as between the employee and the Training Agent or Provider and JIB and/or the third part, as between the employer and Training Agent or Provider and JIB. We have already referred to what this Appeal Tribunal was told in Thorpe (No.2) , as recorded in paragraph 15 of Judge Ansell's judgment. Subject to what might arise in another case, we would conclude that the likeliest result would be that there would be an implied term in the contract between the employer and apprentice, that the contract of employment would be terminable on reasonable notice; such reasonable notice being geared towards the time within which it would be reasonable to expect the Training Agent or Provider, or Council or Board, in question to place the apprentice with another employer. Whereas a term that the employer would be entitled to terminate on one week's notice would be plainly inconsistent with the provisions in the JIB Schemes, to which we have referred, we conclude that such a term as we have discussed would be likely to be consistent, even with the old clause 1.7(f), which it is to be remembered simply provided that an employer "may not discharge nor declare redundant" an apprentice. We feel that that can be read perfectly consistently with a conclusion that steps could be taken to terminate within a reasonable period, if there was such a redundancy situation, and if the employer had taken the steps, which are provided, in that very same clause, to be taken, in order to find another employer willing and able to continue the training. But in our judgment, such an interpretation is even more likely to be consistent with the newly worded 3.11(f), which we have read, which specifically says "[a]n Employer should not normally discharge nor declare redundant an Apprentice because of lack of orders." It would, in our judgment, obviously be much more satisfactory if this matter were expressly addressed in the future by training contracts or Modern Apprenticeship contracts, which are hereafter entered into; and, provided we have properly understood the position, we would recommend that in future there be spelled out what obligation there is upon a Training Provider to use reasonable or best endeavours to find an alternative apprenticeship, and what obligation there is upon an employer in relation to the giving to an apprentice of a reasonable period to find another employer, with the assistance of the Training Provider and/or JIB or other Board, in order to continue his or her training elsewhere. However, whatever may be the case for the future, and in future cases, we have no doubt at all that in the present case, this Appellant was not employed under a contract of apprenticeship, but under a contract of employment, as varied or overlaid by the tripartite trainee arrangements. In the light of that Decision, the appeal must be, to that extent, allowed. In the light of the concession, properly made by the Appellant, through Ms Kelly, that the only sum that can thus be awarded is the sum of one week's notice, unless there can be evidence produced that that sum has been paid (upon which we have invited the Third Respondent to address us) we would be minded to allow the appeal to that limited extent, and substitute the further award to the Appellant of one week's wages, £112.12. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII