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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46147
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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we are employers of a small business. we have apprentices one

Resolved Question:

we are employers of a small business. we have apprentices one of which has stayed longer as he can't pass his English,maths or IT exams. he has passed his motor vehicle part but the college still want us to employe him till he passes the others. surely we have done our bit and can get rid without doing the redundancy bit as we employed him for motor vehicle training not to do school work! this has dragged on an extra 6 months already and looks like it could go longer unless we make him redundant which causes other problems. what do we do?
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Was he employed under a written contract and did have anything in it to deal with the requirement that he successfully passes his exams, etc?

Customer:

hi. no there was nothing in the contract for that, it was a very simple contract.

Ben Jones :

Hi, you can’t actually make an apprentice redundant and you would need to rely on other grounds if you wanted to dismiss them. These could be related to performance or misconduct, although in these circumstances you are most likely going to rely on performance (or capability) as a reason.

However, you have to be careful, as the following case demonstrates: In Dunk v George Waller & Sons, Mr Dunk entered into a four-year apprenticeship. For the first couple of years, he worked reasonably well and progressed through the business. However, he struggled with the exams, and when he failed a particular exam, his employer considered he was unlikely to pass a second time and terminated his apprenticeship. He sought damages for breach. The court held that “he is entitled to damages for his loss of earnings and of training during the remainder of the term of apprenticeship agreement and also for the diminution of his future prospects."

So if he has already gone past the fixed term of his apprenticeship and is still unable to pass the required exams, there could be grounds to dismiss. However, if he still has time left on his apprenticeship and is struggling along the way, then you would be expected to allow him time to improve and should only consider the dismissal route once the fixed apprenticeship term has expired.

Generally, the reasonableness of such dismissals would be measured against the following criteria:



  • Did the employer have reasonable belief in the employee's incompetence;

  • Was the situation investigated and was the employee given the opportunity to voice their side of the story;

  • Was the employee aware of what was required of them in terms of satisfactory performance;

  • Were steps taken to minimise the risk of poor performance through training, supervision, etc;

  • Was a proper appraisal conducted and was the problem identified in a timely manner;

  • Was the employee told of the consequences of failing to improve and were they actually given the chance to improve their performance;

  • Did the employer consider offering alternative employment.


The above are just examples and what a tribunal would generally look for when deciding the reasonableness of a dismissal. If there is a genuine belief or evidence that the employer has acted in a rather heavy-handed manner and not satisfied at least some of the above requirements, the dismissal could be challenged. So try and follow these steps before going down the dismissal route.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Thank you for your information but i guess that even though he has completed his motor vehicle training the college would still say that he is still in his apprenticeship until everything is done. Thanks i'm going to try to work something out with the college,maybe a time frame of him completing or something.

Ben Jones :

yes that is a sensible approach, don't just jump to dismissal as that could create difficulties but try to work with him and to give him the chance to resolve these issues, but be clear that this cannot go on forever and lay down specific, yet reasonable, timelines within which he has to complete the exams

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Customer:

Yes this answered the original question,many thanks for your help

Ben Jones :

you are welcome, all the best

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46147
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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