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amanda taylor
Member - 1 post
How does the law work with non contractual workers.
Recently we have had to lay off a young man who had been helping as an apprentice but due to his lack of attendence at college amoungst other issues including failure to arrive for work.
After several days of not being able to contact him his DD was cancled. It has taken 3 weeks for him to contact us and now wants money in leiu.
How does the law stand on this matter?
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Nigel DuPree
Member - 146 posts
Any implied contract or otherwise was '1' via the Fe college and '2' "conditional" upon attendance to both based around the individuals 'participation' in the day release experiencial learning scheme.
College & work days may even be broken down into half-days so if young man failed to attend without prior arrangement and/or has not provided a sick note after three days he has 'voluntarily' absented himself if he did not work or attend to his studies.
Therefore as scheme will be conditional he looses his placement and any entitlement to 'conditional benefits' like pay and awards linked to activity.
Called 'tough-love' and is a life lesson in that no pain no gain .....
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Nigel DuPree
Member - 146 posts
In this case it should also be 'tough love' founded in law and equity as:
For a contract to exist other than just a basic service agreement i.e. 'if you work today you will be paid for the day' there has to be some 'obligation' or a degree of mutual dependence on one another.
In old fashioned terms for a formal contract to be enforceable the test is whether there is a "Master" and Servant" relationship.
Otherwise the relationship is not one of 'obligation' as the employer could use someone else and the 'employee' need not work - both have a choice one whether to use the services of that individual and the other whether to supply their services.
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James Fairchild
Member - 257 posts
But beware of course the old chestnut of "Implied Employment".
There was a case several months ago concerning a prisoner on day release.... anyone have the reference?
What is a DD? Surely not direct debit?
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Colin England
Member - 55 posts
What does the Contract say? If there is no peice of paper marked "Contract" the courts will imply a "Contract" and write their own terms into it.
The question asks about an "apprentice" that implies that there is a contractural obligation/arrangement for training the young man. If there was no training then the ararangement is/was a sham to hide some other sort of employment.
The question does not say how the employer tried to contact the employee but it would appear that the employer took steps to terminate the employment without following any procedure and not the proceedure set out in the current ACCAS guide lines. In other words it would seem that the employer made a policy on the hoof - that is not a good or professional way to proceed and will in most cases lead to problems.
Did the employer ever set out in firm terms to the young man what he was doing/not doing which the employer was unhappy about and then give him a chance to explain and correct his behaviour? If not then the employer was almost certainly in the wrong and maybe the best thing to do is to pay him off on an agreed settlement.
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Martin Brewer - Mills & Reeve
Online advisor - 84 posts
Just so everyone is entirely clear-for all employment rights an apprentice will be an employee. The Employment Rights Act 1996 specifically refers to a contract of employment as including a contract of apprenticeship "whether express or implied and (if it is express) whether oral or in writing".
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Nigel DuPree
Member - 146 posts
Good to play 'Devils Advocate' but, a STUDENT who has a conditional "learning contract" with a local Fe College who is participatig in a 'work-experience' element of a vocational course will NOT be an emplyee of yours.
They may be entitled to the same duty of care as an employee or anyone visiting your workplace and in addition I have no doubt that the College completed a H & S Risk Assessment for this STUDENTS work placement, the busines / firm will also have a learning agreement with the College.
None of the above would constitute an 'employment contract' between the firm and the student who was in breach of contract anyway by failing to attend college AND work placement.
Therefore, by act of self-destructive omission have self-excluded themselves from the vocational scheme and is now just trying in on because it's not fair that in the real world you should have any consequences for not getting out of bed in the morning because it's stressfull and tough and really hard work being a student and his Mum said he needs his sleep etc. etc. etc. ............
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Nigel DuPree
Member - 146 posts
Of course, an apprenticeship comes with a contract and that is why so few companies offer more formal opprtunities of this kind and it is becoming increasingly difficult for young people to actually get any genuine 'work-experience' other than through placements of this kind.
The part time or day-release style of vocational 'work experience' provides both parties a taster or less formal trial period that is 'without obligation' to stay or to employ at the end, if both parties make it to the end, of the experience.
As with many relationships the employer may have to try or risk opening their doors to a few slimmy toads before they find a prince and it is an expedient way for Fe Colleges to tick the box's on some funding streams for more difficult students referred to them these days by youth justice system.
Nevertheless, those marginalised earlier in their education who may present as functionally illiterate and a little 'spikey' shall we say often prove hard workers with intuative and creative entropreneurial skills to make up for their lack of socio-academic skills.
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Colin England
Member - 55 posts
Please look back at my posting on the 19th June and make any comments as to the correctness of what I said there.
Not withstanding anything else said on here by other it still seems to me to be the case as I set out on the 19th June.
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