Flett v Matheson

A tripartite modern apprenticeship may constitute a contract of apprenticeship even where specialist training is provided by a third party. The court must construe the particular agreement; the label alone is not decisive, but a modern apprenticeship is not presumed to differ fundamentally from a traditional apprenticeship. Where the agreement contemplates a substantial training period, the employer is ordinarily bound for that period, subject to applicable termination provisions. A transfer mechanism does not reduce the obligation to reasonable efforts: until a transfer is arranged and registered, the employer remains responsible for the apprentice’s obligations.

The appellant began working for an electrical contractor and later entered a tripartite Individual Learning Plan with the employer and a training provider. The Employment Tribunal found neither a contract of employment nor a contract of apprenticeship. It awarded compensation for failure to consult following a transfer of undertaking.

The Employment Appeal Tribunal held that the appellant was employed under a contract of employment, but not a contract of apprenticeship, and awarded one week’s wages. It also indicated that modern apprenticeship arrangements might affect the duration or terminability of employment contracts. The appeal concerned the proper characterisation of the arrangement and the extent of the employer’s obligations.

Disposition. Pill LJ delivered the leading judgment. Wall LJ agreed and added that the Individual Learning Plan was a contract of apprenticeship; Lloyd LJ agreed with both judgments. The appeal was allowed to the extent proposed and the matter was remitted to the Employment Tribunal.

1. A tripartite modern apprenticeship can be a contract of apprenticeship. The provision of specialist or academic training by a third-party provider does not prevent the employer’s relationship with the apprentice from having the essential character of an apprenticeship.
2. The agreement must be construed as a whole. The use of apprentice is important but not conclusive. The court should not approach a modern apprenticeship on the assumption that it is fundamentally different from a traditional apprenticeship. Relevant features included the extended training period, the aim of obtaining a qualification, workplace training, wages, the employer’s responsibility for logbooks, and the employer’s obligation to allow attendance at external training.
3. The court applied the approach in Dunk v George Waller and Son Ltd [1970] 2 All ER 630 concerning the payment, training and status secured by an apprenticeship. It also agreed with the approach in Wallace v C A Roofing Services Limited [1996] IRLR 435 that a right to terminate an apprenticeship for redundancy should not readily be implied. The reasoning in Whitely v Marton Electrical Limited [2003] ICR 495 was also accepted.
4. Subject to the transfer provision and the termination provisions in the JIB scheme, the employer was bound for the training period contemplated by the agreement. The transfer provision did not limit the obligation to making reasonable efforts to find another employer. Until a transfer was arranged and registered, the employer remained responsible for satisfying the obligations to the apprentice. The reference to what would normally happen on redundancy did not confer a right to dismiss during the training period.
5. The EAT had been wrong to treat a concession concerning damages for a simple contract of employment as concluding the appellant’s claim after finding that the contract was employment as varied or overlaid by training arrangements. Further findings were required concerning the terms and pay, the relationship between the Individual Learning Plan and the 1999 scheme, and the factual matrix of the employment.

The court cautioned that substantial damages for breach of an apprenticeship may be difficult to prove, as illustrated by Dunk, but that observation did not determine the appeal.

1. Court of Appeal (Civil Division): Allowed the appeal to the stated extent and remitted the case for further fact-finding and reconsideration.
2. Employment Appeal Tribunal: Allowed the appellant’s appeal in part, holding that he was employed under a contract of employment but not a contract of apprenticeship, and awarded one week’s wages.
3. Employment Tribunal: Found that there was neither a contract of employment nor a contract of apprenticeship and awarded compensation for failure to consult under Regulation 10 of the 1981 Regulations.