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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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With an Apprenticeship agreement (under ASCLA 2009), is there

Customer Question

With an Apprenticeship agreement (under ASCLA 2009), is there a period of time before a claim for unfair dismissal can be made- e.g. 2 years as in a normal employment contract?
My daughters been dismissed after 5 weeks, with nothing in the way of procedure/process.
Many Thanks GM
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. What was the reason for dismissal?
Customer: replied 1 year ago.
Being abrupt with customers
Customer: replied 1 year ago.
Sorry I should add- its in a pub resturant
Customer: replied 1 year ago.
My belief is the real reason is they are contracted to pay 30 hours a week, but they've only been giving her 10 hours a week. so in effect shes been costing them £10 per hour. they had plans to buy another pub nearby, but the acquisition fell through
Expert:  Ben Jones replied 1 year ago.
Employees with less than 2 years’ service, including apprentices, generally do not have protection against unfair dismissal as that is one of the minimum criteria to be able to submit a claim. There are limited exceptions in terms of discrimination, for example if someone was dismissed due to their age, gender, race, religion, etc but these do not appear to be relevant here. Saying that, apprentices have enhanced protection against dismissal, more than what a normal employee would have. This protection comes under contract law, where they are employed under an apprenticeship contract (even if a written one did not exist as in this case) and promised to be taught certain skills for the duration of their apprenticeship. Termination of apprenticeship contracts can only happen in very limited circumstances and usually only for serious performance or misconduct issues. It really has to be a serious matter, for example someone being so poor at their work that they cannot be trained, or they had committed a serious enough act to justify dismissal. I do not see either of these to have happened here so it is likely that she has been dismissed in breach of contract, even if she cannot claim for unfair dismissal. She can therefore consider pursuing the employer for damages and compensation as a result of her training being cut short and being deprived of the skills and training she was promised. In addition she can claim for any notice period she was due on termination. This is your basic legal position. I have more detailed advice for you in terms of the steps you can follow to take the mater further and also the relevant case law to back up such a claim, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 1 year ago.
Thank you for the clarity! I've been really struggling to get my brain round the 'maybe's-
Customer: replied 1 year ago.
Yes, I'd understood the protection under the 'old fashioned' apprentice contact, it was whether that applied to ASCLA agreements as well. Presumably the claim would be through courts as a breach of contract, rather than through ACAS into Employment tribunal.
Expert:  Ben Jones replied 1 year ago.
Thank you. As mentioned, apprentices have a contract for the duration of the apprenticeship and the employer is required to see that off and provide them with the training and work for the full period. The employer is expected to give them the opportunity to improve, provide extra training, apply some performance management, etc and only if there are serious ongoing issues can they eventually remove them. The following is sound advice from an employment rights site: “Employers would be advised to tread particularly carefully in the case of common law apprentices. This type of apprenticeship scheme will normally be for a fixed term, and cannot usually be terminated early except in cases of extreme misconduct. Case law suggests that the misconduct must be so serious that it is impossible to carry on teaching the apprentice and that gross misconduct (which would justify the summary dismissal of an ordinary employee) may not be sufficient to justify early termination. In addition to any statutory claims, such as unfair dismissal, the early termination of a common law apprentice carries with it the risk of a breach of contract claim, which could potentially be very valuable. The remedy for such a claim can be large, as a wrongfully dismissed common law apprentice may be entitled to enhanced contractual damages to compensate for the (possibly significant) effect on future career prospects and earning potential, in addition to lost earnings for the remainder of the fixed term (such as in the case of Dunk v George Waller & Sons [1970])” She would have a duty to try and mitigate her losses so if she finds a new position to reduce the effects of this dismissal, the potential compensation can be reduced. However, if this is not possible, despite her reasonable attempts, she can pursue them for losses covering the remainder of the term. She must also be paid any holidays she has accrued whilst working there and which were untaken at the time of termination. Any claim for compensation can be made via www.moneyclaim.gov.uk
Customer: replied 1 year ago.
Thank you- that's all I need. Great job!
Expert:  Ben Jones replied 1 year ago.
You are welcome, all the best

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