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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47409
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Employer is belittling my girlfriend wanting to continue her

Customer Question

Employer is belittling my girlfriend for not wanting to continue her apprenticeship into the level 3 stage saying she is wasting her life and will never get a decent career.He then went onto compare her to an ex-employee who was sacked and said she would end up like the sacked employee.As it's the employer there is no one to turn to, what can she do?
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.

Customer: replied 1 year ago.
Thank you for your fast response.
Expert:  Ben Jones replied 1 year ago.

No problem at all. How long has your girlfriend been working there and is her employment conditional on completing the course?

Customer: replied 1 year ago.
The contract is purely for the apprenticeship of Level 2. She would have just reached about a year of employment with the small firm.
Expert:  Ben Jones replied 1 year ago.

OK, thank you for your response. I will review the relevant information and laws and will get back to you in a short while. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 1 year ago.

Hello, sorry I could not get back to you sooner, I had some connection issues getting back on the site.

It appears that she is the subject of bullying by the employer. The issue with bullying is that apart from an internal grievance it is not possible to make a claim or complaint directly about bullying to anyone else. If someone is the victim of bullying then the only official way to deal with it is to resign and make a claim for constructive dismissal (subject to having 2 years’ service) or if they are dismissed – make a claim for unfair dismissal. So whilst she is certainly able to make a formal grievance with the employer, if that does not resolve things she will only be able to challenge this formally if she is dismissed.

Apprentices are still legally treated as employees so their employment can be terminated if necessary. The apprentice’s rights in this respect will depend on whether they are employed under an apprenticeship agreement or an apprenticeship contract.

An apprenticeship contract automatically exists if an employer has an agreement with an individual the main purpose of which is for that individual to be trained by the employer. However, the apprentice could be employed under an apprenticeship agreement instead and this will give them different rights. For such an agreement to be valid it must be issued in accordance with the Apprenticeships, Skills, Children and Learning Act 2009. So if there was an agreement in place which was issued under this Act, it is likely an apprenticeship agreement would have been created.

If the apprentice as not employed under an agreement, they will get better rights. That is because in addition to a contract of employment, there would be a contract for training for the duration of the apprenticeship. In these circumstances an apprentice can only be dismissed if they were found guilty of serious misconduct or extremely poor performance. They cannot be made redundant. If the apprenticeship is not terminated for these reasons, the apprentice could potentially seek compensation for the loss of earnings under the apprenticeship contract plus the loss of potential future earnings.

However, if they were employed under an apprenticeship agreement, they would be treated in the same manner as employees and will not get the additional protection they would have received had they been employed under an apprenticeship contract. They can be dismissed subject to the usual fair dismissal rules, and will not have protection against unfair dismissal unless they have 2 years service. They would be entitled to their contractual notice period and any accrued holidays but not to any further damages for the loss of opportunities or loss of training.

So in summary, the only protection she will get is if she is employer under an apprenticeship contract, not an apprenticeship agreement, and she is unfairly dismissed.

This is your basic legal position. I have more detailed advice for you in terms of the steps she can follow in the event she has to take this further formally, 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, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones and 2 other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.

Thank you. As mentioned the only way to challenge this would be if she was employed under an apprenticeship contract and was dismissed early for an unfair reason, allowing her to pursue them for compensation for losses.

Whenever a dispute arises over compensation owed by one party to another, the party at fault can be pursued through the civil courts. As legal action should always be seen as a last resort, there are certain actions that should be taken initially to try and resolve this matter informally and without having to involve the courts. It is recommended that the process follows these steps:

1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the party at fault to voluntarily settle this matter.

2. Letter before action – if informal reminders have been sent but these have been ignored, the party at fault must be sent a formal letter asking them to resolve this amicably within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to pursue the compensation due. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.

3. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the other side and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.

Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.

Customer: replied 1 year ago.
I reviewed the contract/agreement she signed.The document itself is titled with 'contract of employment' but goes on to state that 'this is an agreement' the document also states a termination date which has been surpassed and no new contract has been provided to be signed. On top of this I was under the impression that apprenticeship contracts or agreements aren't allowed termination dates.Furthermore they are going to have her (as well as other staff) hours cut which has not been provided in any format of writing, just verbally. This in itself is beneficial to her studying as long as they weren't to go below the 30 hours stated in the document she signed, but has obviously expired. Is there anything she can do about this?
Expert:  Ben Jones replied 1 year ago.

Well it is common for apprenticeships to be for a specified period, for example 1 year or 2 years, to cover the training period they are offering. In terms of the hours, cutting these will be a breach f contract and again the same steps as above in terms of compensation for losses as a result of these cuts can be pursued

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