The claimant was taken on by the respondent under a scheme which was called ‘Accepting Learners on Workbased Training’. At first the claimant was not paid, but later he was paid at a rate of £2.50 per hour partly at the request of the claimant’s family and partly because the organisation which set up the workbased training said that its policy was no longer to support ‘learners’ who were not employed and wanted him therefore to be put on the payroll. Work at the respondent’s dried up and the claimant’s position at the respondent ended. He claimed unfair dismissal, which was dismissed, but the ET upheld his claim for unlawful deduction of wages arising from him not being paid the minimum wage. The central argument was whether the claimant was employed under a contract of employment or a contract of apprenticeship. The respondent claimed that he was an apprentice and therefore the minimum wage regulations did not apply. The ET considered the case of Flett v Matheson, and decided that the nature of the relationship between the claimant and respondent was not one of apprenticeship despite references having been made to the existence of an apprenticeship. The respondent appealed.

The EAT said that ET’s conclusions on the claimant’s duties in fact pointed towards apprenticeship rather than the reverse. His duties were ‘perceived by him to be in the form of training’ and he did no unsupervised work. Even though the contract of employment, which the claimant had never been given, did not use the word ‘apprentice’, the substantial character of the relationship indicated that the claimant was an apprentice.

___________________

Appeal No. UKEAT/0268/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20th January 2011

Judgment given on 20th January 2011

Reasons promulgated 7th February 2011

Before

THE HONOURABLE MR. JUSTICE UNDERHILL (PRESIDENT)

MR. D EVANS CBE

MRS. M V MCARTHUR FCIPD

CHASSIS & CAB SPECIALISTS LTD (APPELLANT)

– and –

MR. J D LEE (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR. PHILIP PYE (Representative)

For the Respondent Written Submissions

**SUMMARY**

CONTRACT OF EMPLOYMENT – Apprenticeship

NATIONAL MINIMUM WAGE

Claim for national minimum wage – Employer contends that claimant employed under a contract of apprenticeship and so excluded by reg. 12 (2) of Regulations – Tribunal holds that Claimant was employee and not apprentice.

**Held**, allowing appeal, that on the evidence before it the Tribunal should have found the Claimant to be an apprentice – **[**Flett v Matheson**](http://www.bailii.org/ew/cases/EWCA/Civ/2006/53.html)** [2006] IRLR 277 followed.**THE HONOURABLE MR** **JUSTICE UNDERHILL**

1. We gave our decision in this appeal at the conclusion of the hearing, with reasons to follow. These are our reasons.

1. The Appellant is a small family company in Leigh in Lancashire engaged in car body work repair. The principal Director is a Mr. Waterworth. The Claimant is a young man, born on 4 March 1990, who worked at the Appellant's premises between 6 November 2007 and 27 March 2009: the capacity in which he did so, at least in the later part of that period, is the issue in this appeal.

1. The Appellant appeals against the decision of an Employment Tribunal sitting in Manchester, chaired by Employment Judge O'Hara, awarding the Claimant the sum of £4,181.60 for unlawful deduction of wages. The hearing took place on 13 November 2009. The Tribunal reserved its decision and its Judgment and Reasons were sent to the parties on 2 February 2010. There were also before the Tribunal claims for unfair dismissal and for holiday pay. The former claim was dismissed and there is no cross-appeal. The latter was successful, and there is no appeal.

1. It is unfortunate, given the nature of the issues, that neither before the Tribunal nor on this appeal has either party been professionally represented. Before the Tribunal the Claimant was represented by a Mr. Parr, who is his girlfriend's father, and the Appellant by a Mr. Pye, who is described in the Judgment as an "advisor" but who does not purport to have any professional expertise in this area. On this appeal Mr. Pye has again represented the Appellant. The Claimant has elected not to attend, although Mr. Parr has submitted a skeleton argument of which we have taken full account.

1. The basis on which the Tribunal upheld the Claimant's claim was that he was entitled to be paid the national minimum wage (at the rate applicable to persons under age 22) from 31 March 2008 – we explain below the significance of this date – until the termination of the relationship between him and the Appellant on 29 March 2009. Prima facie the national minimum wage is payable to any "worker" who is above compulsory school age (as the Claimant at the material time was) and who ordinarily works in the United Kingdom: see section 1 of the National Minimum Wage Act 1998. "Worker" is defined in section 54 (3) as meaning (so far as relevant) an individual who has entered into or works under a contract of employment: "contract of employment" is defined by sub-section (2) as meaning "a contract of service or apprenticeship". But regulation 12 of the National Minimum Wage Regulations 1999 provides for various exceptions to that prima facie right. The exception principally considered by the Tribunal in its Reasons was that created by under para. (2), which covers certain workers engaged under contracts of apprenticeship (actual or deemed); but it also apparently considered para. (5), which applies – subject to certain conditions and qualifications – to persons participating in "schemes" designed to provide "training, work experience or temporary work". It held that neither exception applied. It found that the Claimant was during the material period working under a contract of employment and entitled to the national minimum wage accordingly.

1. It is the Appellant's case, as set out in the Notice of Appeal and in Mr. Pye's skeleton argument, that the Claimant falls within the exception provided for by regulation 12 (2): no point is taken in relation to regulation 12 (5). Regulation 12 (2) reads as follows:

"A worker who –

(a) …

(b) is employed under a contract of apprenticeship or, in accordance with paragraph (3), is to be treated as employed under a contract of apprenticeship, and

(c) is within the first 12 months after the commencement of that employment or has not attained the age of nineteen,

does not qualify for the national minimum wage in respect of work done for his employer under that contract."

On the Tribunal's findings, to which we will refer in more detail below, the Claimant was throughout the period in question within the first twelve months of his employment: so head (c) is satisfied. The question on this appeal is thus whether his case falls within head (b). In fact it is narrower still. A worker may fall within head (b) if either (i) he is employed under a contract of apprenticeship, i.e. what would be recognised as a contract of apprenticeship at common law, or (ii) he is to be "treated as" so employed in accordance with para. (3), which refers (so far as relevant for present purposes) to workers "engaged … under the Government arrangements known, at 1 October 2004, as Apprenticeships or Advanced Apprenticeships." It is not suggested that the Claimant was so engaged, and accordingly we are concerned only with element (i). The straightforward question thus is whether the Claimant was employed under a contract of apprenticeship.

1. We turn to the evidence before the Tribunal relating to that question and the findings which it made on that evidence. We have to say that this is not as straightforward a task as it should be. The Tribunal's findings of primary fact are distributed between the part of the Reasons in which it seeks to record its findings of fact (para. 3) and the section containing its analysis and conclusions (paras. 13-19); and, partly but not only for that reason, it is difficult to establish a clear chronological account. As to the evidence on which those findings are based, the Tribunal was not of course obliged to identify every item of evidence in detail, but there are points where the findings are contentious or unclear where it would have been useful to know what the underlying evidence consisted of. It is in fact unclear from the Reasons themselves precisely what oral or written evidence the Tribunal heard and/or took into account. No doubt for this reason Mrs. Justice Slade at the preliminary hearing of this appeal asked the Judge to supply a transcript of her notes of the evidence. That has now been done. What has been supplied are the notes of the oral evidence of the Claimant and Mr. Waterworth, who were the only live witnesses (together with a note of submissions); but it appears from the notes that witness statements from each of them were taken as read, and unfortunately Mr. Pye did not appreciate that it would have been useful for us to see these and we do not have them. We can however identify the relevant evidence as follows:

(1) the evidence of the two live witnesses, being the Claimant and Mr. Waterworth;

(2) four written statements put in by the Appellant but whose authors were not called to give evidence;

(3) a number of contemporary documents which we need not enumerate at this stage.

1. Of the four statements referred to at (2) above, three are irrelevant for present purposes. The fourth, however, from a Mr. Wilkes, is relevant and helpful. It is not referred to by the Tribunal in the Reasons. Mr. Parr in his skeleton argument on behalf of the Claimant says that the written statements were not supported by "personal attendances" at the Manchester tribunal and were "dismissed" at the time by the Judge, and therefore should be dismissed again at this hearing. There is no reference in the Reasons to the Tribunal having dismissed the statements in question, as there should have been if there was a ruling on the matter; but in view of the fact that the evidence of Mr. Wilkes is indeed not referred to at all it seems reasonable to suppose that it did indeed make some such ruling. (We should acknowledge that we only noticed the statement in Mr Parr's skeleton after the conclusion of the hearing and so did not have the opportunity to explore it with Mr. Pye.) If Mr. Wilkes's statement was excluded simply on the basis that he had not been called as a witness this would be wrong in principle. Written statements are perfectly admissible in evidence. Of course they may be of limited, or even no, value if their contents are unclear or are disputed in live evidence. But Mr. Wilkes's statement is reasonably clearly drafted and the material in it is of its nature unlikely to have been contentious, at least so far as it relates to questions of primary fact. We will accordingly take it into account in this judgment, but we should make it clear that we do so as helpful background and our conclusion would not be any different if for some reason it ought after all to have been excluded.

1. Against that background, we will attempt to set out the facts which the Tribunal found or which appear from the apparently undisputed evidence before it.

1. In late 2007 the Claimant approached Mr. Wilkes, who worked for a company called Training and Management Ltd ("TML") (which was subsequently taken over by another company called Skills Solutions Ltd, trading as Automotive Solutions ("AS")), as an "Employment Liaison Officer". The business of TML was to arrange training schemes for young people and the unemployed which combine on-the-job training with appropriate education at a college or similar institution. Mr. Wilkes introduced the Claimant to Mr. Waterworth as someone seeking an "apprenticeship", and he agreed to take him on. (Mr. Wilkes uses the term "apprenticeship" quite freely in his statement: in so far as we repeat it in summarising his evidence, we do not regard it as in any way dispositive of the issue which we have to decide.) Mr. Wilkes and Mr. Waterworth signed a standard-form "Agreement between [TML] and the Employer for Accepting Learners on Workbased Training" ("the Agreement"), under which the Appellant undertook (in summary) to admit the Claimant, who is described throughout as "the Learner", on its "agreed training programme" subject to a number of specified terms and conditions. We reproduce the Agreement in full as an appendix to this judgment. (For completeness, we should add that neither the Tribunal nor we were shown TML's publication "A Guide for Employers on Workbased Training" referred to at para. 15 of the Agreement. It seems unlikely, though it is impossible to be sure, that it will have contained anything relevant to the issues before us.) Although the Claimant was not a party to the Agreement it is good evidence of the nature of the relationship between himself and the Appellant.

1. Para. 14 of the Agreement refers to the Claimant as "a non-employed status learner". Mr. Waterworth also signed a document headed "Non-Employed Learners Insurance Notification Return", formally confirming that the Appellant had notified its insurers that "non-employed learners are working on our premises". Mr. Wilkes explains in his statement that that insistence on "non-employed status" reflected the fact that the Claimant was still in education and was in receipt of education maintenance allowance, to which he would not have been entitled if he was in employment. (In fact it is not clear what education the Claimant was receiving at this stage, and, as appears below, it was some time before he was admitted to an appropriate college for off-the-job training, though that seems to have been the intention from the start.) Mr. Wilkes also explains that for that reason the Claimant was paid (at that stage) no remuneration of any kind, notwithstanding the provision in para. 9 of the Agreement that "the Learner will have the pay and conditions which are set out in a separate contract of Employment or Training Agreement": there was in fact no written training agreement (or indeed contract of employment) entered into at this point between the Claimant and the Appellant. (The Claimant did receive five payments of £20 from the Appellant in the early days of the arrangement, but the Tribunal found that these were paid on a purely ex gratia basis.)

1. From 7 November 2007 onwards the Claimant attended at the Appellant's premises full-time and five days a week, and underwent on-the-job training. The progress of that training was periodically reviewed by an assessor from TML, who completed "Learner Review/Progress Reports" which were counter-signed by the Claimant and Mr. Waterworth.

1. The position changed in an important respect from effect from 31 March 2008. From that date the Appellant paid the Claimant £2.50 per hour. Mr. Wilkes explains that this change was partly as a result of an approach from the Claimant's family and partly because it became the policy of TML/AS no longer to support "learners" who were not employed, and that he had accordingly encouraged Mr. Waterworth to take the Claimant "onto wages". Ultimately, however, the reason does not matter: what matters is the receipt of remuneration and that Mr. Waterworth himself plainly regarded the Claimant's status as having changed from that point. That is evidenced by a fresh form of notification to the Appellant's insurers, signed on 17 April 2008, confirming that "the following learner (Young Person) [namely the Claimant] is employed by this organisation": the start date is given as 31 March. The Tribunal found that as from that point the Claimant's legal status changed: before 31 March 2008 he was not, but as from that date he was, working as an employee pursuant to a contract of employment. It follows that he should have been issued with a statutory statement of his terms and conditions of employment. (That is so whether the contract was one of service or apprenticeship, since "employee" in section 1 of the Employment Rights Act 1996 includes a person employed under a contract of apprenticeship: see section 230 (2).) The Appellant produced to the Tribunal a document which it said was a contract of employment issued to the Claimant in March 2008, but the Tribunal did not accept that he received any such document.

1. Apart from this change in legal status, it is not suggested that in other respects the facts changed on the ground. The Claimant continued to receive training and to have his progress assessed by TML/AS.

1. In September 2008 the Claimant started on a formal programme working towards a level 2 NVQ. This appears to have been the intention from the start, but the course was not available until this date; and, as already noted, it is not clear what, if any, education and/or off-the-job training the Claimant had been receiving over the previous ten months. He and Mr. Waterworth signed an "Individual Learner Plan" on a form supplied by AS, under which he would receive on the job training from the Appellant with day release to a college in St. Helens. The expected duration of the plan appears to have been just under two years. In support of this arrangement a formal "Individual Learner Record" was generated, identifying the "Learner", the "Employer" and the "Provider" – i.e. the Claimant, the Appellant and AS. This record described the arrangement as an "Apprenticeship Programme": so far as we can see it only required a signature by AS, and the Tribunal makes no finding as to whether Mr. Waterworth or the Claimant saw it at the time (though presumably one or both must have had a copy in order to be able to produce it to the Tribunal). AS continued to monitor the Appellant's progress, filling in regular forms.

1. The Tribunal found that "the cost of the Claimant's training … was being provided by funds from the European Social Fund" (see Reasons para. 18). As we understand it, the reference is to the cost of the off-the-job training at St. Helens College.

1. The Tribunal records that it was the evidence (apparently from both parties) that it was common ground that the Claimant was routinely referred to by Mr. Waterworth as the "apprentice", though it was Mr. Waterworth's evidence that that was the normal term for the youngest person in the workplace and had no special connotation. There is no explicit finding as to how often or over what period the term was used, but the clear inference seems to be that it was used routinely and over the entirety of the period.

1. The position remained as we have described it (except that the Claimant's pay was increased to £3 an hour on his nineteenth birthday) until 20 March 2008 when Mr. Waterworth gave the Claimant a week's notice on the basis of shortage of work.

1. The issue for the Tribunal was whether on those facts the contract under which the Appellant was working, as it had found, from 31 March 2008 onwards was a contract of apprenticeship. It does not in its Reasons refer to any authority on the question of what constitutes a contract of apprenticeship at common law. No doubt the parties were not in a position to give it any assistance on this point, but it could have found the key authorities readily enough in Harvey on Industrial Relations and Employment Law: see both the note to the Regulations in Part R and the main text at para. A91 ff. The most authoritative general discussion of the characteristics of a contract of apprenticeship is in Edmonds v Lawson [2000] ICR 567, which was indeed concerned with the 1998 Act though in a very different context. At para. 29 (p. 579 D-E) the Court of Appeal observed that "we infer that Parliament intended a relatively unlegalistic view of what modern apprenticeship entails". At para. 30 (p. 579 F-G) it described the contract of apprenticeship as one:

"in which the master undertakes to educate and train the apprentice … in the practical and other skills needed to practise a skilled trade … and the apprentice … binds himself to serve and work for the manager and comply with all reasonable directions."

1. There have been several recent authorities which have considered the application of the relevant law in the context of modern forms of tripartite agreements combining on-the-job and off-the job training. The leading case is Flett v Matheson [2006] IRLR 277. In that case the claimant and the respondent had, together with a training provider, entered into an arrangement for an "Individual Learning Plan" ("ILP") under a "modern apprenticeship scheme" produced by the Joint Industry Board for the Electrical Contracting Industry. The issue was whether the claimant was employed under a contract of employment or a contract of apprenticeship. The Court of Appeal, overturning the decisions of the employment tribunal and this Tribunal, held that he was employed under a contract of apprenticeship. At para. 34 Pill LJ said:

"The contract is called in the ILP an apprenticeship and is a combination of off and on the job training. What occurs at the place of work is part of the training required to obtain the qualification stated in the ILP and the employer has responsibility for the completion of logbooks for that purpose. A lengthy period of training is contemplated. Moreover, while the employer does not provide the more academic part of the training, he is required to give the apprentice time off to obtain it and to fund the cost of attendance at classes. The fact that under the tripartite arrangement, a part of the training is provided by a third party and not the employer is not in my view crucial to the analysis of the employer's obligations under the tripartite arrangement constituted by the ILP. There is an obvious advantage to all parties in the more academic part of the training being arranged by a specialist organisation at a college. The whole thrust of the documentation in my view supports the view that the contract comes with the category of apprenticeship."

At para. 38 he said:

"In my judgment, the use of the word 'apprentice' in the documents is an important element in construing the obligations under the ILP. To decide upon the extent of those obligations it is, however, necessary to construe the particular agreement, and not rely on the label alone. On the other hand, because an agreement is described as a modern apprenticeship, its construction should not be approached on the basis that it is necessarily something fundamentally different from a traditional apprenticeship."

At para. 40 he said:

"... The arrangement has the essential features of an apprenticeship, as stated by Widgery LJ in Dunk. The fact that some training is provided by a party other than the employer does not in my judgment deprive the relationship between employer and apprentice of a long-term character which persists until the end of the training period contemplated. As already stated, it is not surprising, in modern conditions, that a specialist provider is included in the arrangements."

**

The authority referred to is Dunk v George Waller & Son Ltd** [1970] 2 QB 163. Widgery LJ did not in that case seek as such to define the essentials of a contract of apprenticeship, but the passage referred to by Pill LJ is at p. 634 C-D, where he says:

"A contract of apprenticeship secures three things for the apprentice: it secures him, first, a money payment during the period of apprenticeship, secondly, that he shall be instructed and trained and thus acquire skills which would be of value to him for the rest of his life, and, thirdly, it gives him status, because the evidence in this case made it quite clear that once a young man, as here, completes his apprenticeship and can show by certificate that he has completed his time with a well-known employer, this gets him off to a good start in the labour market and gives him a status the loss of which may be of considerable damage to him."

It is worth noting also that Pill LJ observed at the end of para. 33 that:

"If, as appears to be the case, the appellant was receiving less than the national minimum wage, it points to the agreement being one of apprenticeship."

But we appreciate that it would be circular to treat this observation as determinative in the present case.

1. In our judgment, if the Tribunal had considered Flett and had approached the issue before it in accordance with the guidance there given it would have reached the conclusion that the contract between the Claimant and the Appellant in this case was indeed one of apprenticeship. The essential purpose of the contract, as appears from both the original Agreement – to which the Claimant was not a party but which is nevertheless, as we have said, good evidence of the nature of the parallel contract with him – and the Individual Learner Plan, was that the Claimant should receive training so as to achieve a given level of skill, attested by a recognised qualification. The fact that the Claimant was described in TML/AS's internal paperwork as being on an apprenticeship programme is evidence of how at least one experienced party to the relationship regarded it. It is true that the term "apprentice" was not used in the Agreement or in any document involving the Appellant and the Claimant. But the way that the parties described their relationship in the documentation is not determinative; and in any event, even bearing in mind Mr. Waterworth's qualification referred to at para. 17 above, some significance must be attached to the fact that the parties made regular oral use of the term "apprentice". In our view the type of arrangement entered into by the Appellant and the Claimant is substantially identical to the "modern apprenticeship schemes", so styled, such as were considered in Flett and in the earlier decision of this Tribunal in Whitely v Marton Electrical Ltd [2003] ICR 495. We have not overlooked the use in the documents of the term "Learner", but while that is certainly not interchangeable with "apprentice" - no-one suggests the Claimant was an apprentice prior to 31 March – nor do we see why the terms should necessarily be mutually exclusive.

1. The one point that has given us some concern is whether the comparatively low level of qualification being sought in the present case - i.e. level 2 NVQ - and/or the duration of the arrangement - i.e. two years from the start of the programme (though of course the relationship pre-dated that by many months) - make a difference. Both traditional apprenticeships and – we believe - the more recent "modern apprenticeship" schemes typically are of longer duration and result in more advanced qualifications. The Regulations, as we have seen, proceed on the basis that there are kinds of arrangement under which a worker works for an employer in a training or learning capacity which do not constitute apprenticeships (see reg. 12 (5)); and in a case where we have had no professional representation we would not want to enter on any consideration of what the relevant distinctions are or where they may lie. We content ourselves with saying that the contract in place between the Claimant and the Appellant as from 31 March 2008 seems to us to have the essential characteristics of an apprenticeship.

1. The Tribunal's reasons for its contrary conclusion are not entirely easy to identify. The paragraphs purportedly addressing the issue are paras. 15-16 (though there are in fact two paragraphs numbered 15). The first para. 15 says that the Claimant's duties were "perceived by him to be in the form of training" and that he did no unsupervised work. That points towards apprenticeship rather than the reverse. The second para. 15 records that the Tribunal regarded both the Claimant and Mr. Waterworth as honest witnesses; but since there were no significant disputes of primary fact that does not advance the argument. At para. 16 the Tribunal says:

"According to the respondent it is traditional to refer to the youngest person in the workplace as the apprentice. This did not, however, indicate any particular significance to the status of that person for the purposes of entitlement to the national minimum wage or in this case to the relationship between the claimant and the respondent. Traditionally a contract of apprenticeship can be found where the evidence suggests that this is the nature of the contract which existed. However, even on the written contract of employment purported to have been given by the respondents to the claimant in this case the word "apprenticeship" does not appear. In those circumstances the Tribunal found that the nature of the claimant's relationship with the respondent was not one of apprenticeship for the purposes of the regulations despite references having been made by both witnesses to the existence of an apprenticeship."

The only circumstance that we can identify as being relied on within that paragraph as weighing against the contract being one of apprenticeship is that it is not so referred to in the "contract of employment" which the Tribunal found that the Claimant was never given. How much weight should be given to a unilateral document of doubtful date is debatable; but in any event the non-use of the term "apprentice" by an employer who, as the Tribunal found, had no real understanding of the formalities (and who indeed was almost certainly using a standard precedent) is not particularly significant. In so far as the Tribunal intended to make the wider point that there is no inter partes document referring to the contract as one of apprenticeship, that is true; but for the reasons already given it is not in our view determinative. What matters is the substantial character of the relationship.

1. Although on the face of it is directed at a different point, we should set out para. 18 of the Reasons, which reads as follows:

"The Tribunal did however find that the terms of paragraphs 5 and 6 of Regulation 12 applied to the claimant in such a way that he was entitled to be paid the national minimum wage. The justification behind the exclusion from those engaged in a contract of apprenticeship from entitlement to the national minimum wage may be related to the fact that the employer of an apprentice is making a significant contribution to the costs of training. The nature of the contract is also more onerous for the employer. On his evidence, Mr. Waterworth was not engaged in that form of contract with the claimant in this case. He said that he called the youngest person in the workplace the apprentice. The Tribunal therefore considered that although the respondent had regarded itself as free from the obligation to pay the national minimum wage to the claimant that this was an erroneous belief on their part and not one in these circumstances which they were entitled to operate. The cost of the claimant's training in this case was being provided by funds from the European Social Fund and the respondents obtained the advantage of a person whose training was being paid for in that way. In those circumstances it seemed to the Tribunal that it would not be appropriate that the respondent should obtain that advantage but also avoid its obligation to pay the national minimum wage."

We do not understand the reference to paras. (5) and (6) at the beginning of that paragraph. However, it seems from it that the Tribunal may also have taken into account in considering the issue under para. (2) the fact that the Claimant's off-the-job training was being funded by the European Social Fund rather than by the Appellant. We do not regard that as inconsistent with a contract of apprenticeship.

1. We accordingly allow the appeal against para. 3 of the Judgment and dismiss the claim for unlawful deductions.

1. Mr. Parr in his skeleton argument made one point not made by the Tribunal, namely that if the Claimant was in truth an apprentice he would be entitled to substantial damages for the early termination of the contract, which could not simply be terminated by notice like an ordinary contract of employment. He is in principle right about that, as Flett confirms. But the suggestion that the Appellant would not have exposed itself to such a claim by dismissing the Claimant as it did if the contract was one of apprenticeship is not a reliable indicator: as already noted, the Tribunal found that Mr. Waterworth had no clear understanding of the arrangements into which he had entered. Mr. Parr appears to say that if the Claimant is after all held to be an apprentice he ought now to be awarded appropriate compensation for his dismissal. We have obvious sympathy with that contention, but so far as we can see the case was never advanced in that way before the Tribunal; and even if it was there is no cross-appeal claiming such compensation. It may be that the Claimant can still pursue such a claim in the County Court, with the benefit of the decision which we have made; but we must emphasise that it is not for us to advise him what course he should take.

APPENDIX

1. This Agreement is made between Training and Manpower and The Employer

Name of Employer …

Address …

In respect of …

1. The Employer agrees to ensure that the Learner is not impeded in his/her attendance for off-the-job training, associated knowledge and assessments as required to complete the agreed outcomes.

1. The Employer will allow suitable Learners to complete their training programme. Should a suitable Learner not be allowed to complete the programme then the Employer agree to reimburse Training and Manpower for the loss of income, training expenses, NVQ Registration and certification fees.

1. It shall be the responsibility of the Employer to take all necessary steps for securing the health, safety and welfare of all persons on workbased training under the relevant health and safety regulations in force.

1. The Employer is required to treat Learners by or under the provisions of The Sex Discrimination Act 1975, The Disabililty Discrimination Act 1995 and the Race Relations Act 1976. Refer to the Equal Opportunities Policy contained in the Employers Guide on Work-Based Training.

1. Policies of Employers Liability Insurance and additional insurance with regard to fire, material damages, fidelity or motor vehicle theft and product liability should be in force.

1. When the Learner is absent for any period without prior agreement, or is absent as a result of suffering personal injury or developing a disease, the Employer shall notify Training and Manpower immediately.

1. The Employer shall give to the appropriate person or authority any notification for the time being required to be given by or under the health and safety or other legislation in respect of his or her undertaking.

1. The Employer agrees that during the term of the workbased Training Agreement the Learner will have the pay and conditions which are set out in a separate contract of Employment or Training Agreement.

1. The Employer agrees to appoint a mentor to oversee and support the Learner throughout the workbased training.

1. The Employer agrees to use their best endeavours to secure alternative employment for the Learner if unable to offer employment on completion of training or redundancy, and to notify Training and Manpower immediately should the situation arise.

1. The Employer agrees to allow the Local Learning and Skills Council and the Adult Learning Inspectorate access to the Learner as required.

1. The employer allows the Local Learning and Skills Council access to acceptable attendance records/payroll for any employed status Learners.

1. The employer agrees to pay the VAT on the benefit from the services of the Learner who is a non-employed status Learner.

1. The employer accepts that the Training and Manpower publication "A Guide for Employers on Work Based Training" details the respective parties obligations in addition to the above.

1. The contract shall take effect as from the date of exchange of signed copies of this Agreement.