Sandra Gowers gets legal guidance this week from Martin Brewer, a Partner with the employment team of Mills & Reeve, and Helen Badger, employment law expert at Browne Jacobson, on whether an apprentice has a case for breach of contract.
The question:
My nephew was offered and accepted the offer of an apprenticeship in Jan 06. It was to start sometime in March in readiness for the summer term at college. The start date was never confirmed and the company involved have now gone very quiet and are not returning his calls.
Does he have a case for breach of contract here? He had already resigned his job in March as he was told he would ‘definitely be starting either the 20th or 27th March’ and is now out of work with no income. Any advice?
The answers:
Martin Brewer, is a Partner with the employment team of Mills & Reeve
The really critical question is whether an agreement was ever entered into in this case. It is perfectly possible for the parties to an apprenticeship agreement to have a legally binding agreement before the apprentice commences the apprenticeship. If a legally binding agreement has been entered into for an apprenticeship then there are certain consequences.
A contract of apprenticeship is fairly onerous and creates more liability for an employer than an employment relationship. In an apprenticeship scenario the following features are present:
1. The contract is usually for a fixed term;
2. The ‘master’ effectively agrees to engage the apprentice for the entirety of the term and the apprentice agrees to remain an apprentice for that period; and
3. The ‘master’ has an obligation to educate and train, and subject to limited exceptions, secure the required qualification for the apprentice and then employ him or her in full time employment.
The contract of apprenticeship is terminable before completion of the apprenticeship only in very exceptional circumstances. In particular it is not lawful to terminate the contract merely because of an ordinary redundancy situation.
The contract would only be terminable in the event of closure of the workplace or some other radical change of circumstance which meant that the apprentice could no longer be taught his trade.
The contract of apprenticeship is only terminable on reasonable notice. That is the time in which it is reasonable to expect a training agent to place the apprentice with another master. Therefore such an arrangement can be difficult and potentially costly to terminate.
So is there a binding agreement. For this you need an offer which is capable of acceptance, unequivocal acceptance, an intention to create legal relations and so-called consideration. The last two points will certainly exist if the first two are present. The absence of a start date may indicate no final agreement but it would be necessary for someone to look at the exchange of correspondence to give you a definitive view.
Martin can be contacted at: [email protected]
Helen Badger, employment law expert, Browne Jacobson
If any situation where there has been an offer and an acceptance of that offer then it is likely that a contract has been formed. You do not say whether the offer and acceptance is recorded in writing. Even if it is only verbal then the contract is still binding but there are more difficulties in proving that contract exists and in enforcing it.
If this were a normal contract of employment then, where an offer has been made and accepted, the company could lawfully terminate it by giving due notice. This would depend on what period of notice had been agreed between the parties.
Contracts of apprenticeship are different however and governed by slightly different rules. Traditional apprenticeships had limited rights of dismissal and a wrongful termination could entitle the apprentice to claim damages for the full term of the apprenticeship and possibly enhanced damages because of the loss of prospects as a tradesman on completion of the apprenticeship.
Assuming this is a ‘modern apprenticeship’, i.e. one that involves three parties, the individual, the employer and the training organisation; the basic obligation on the employer is to allow access to training by the organisation. As such this would not amount to a traditional contract of apprenticeship under which there was a limited right of dismissal. In the case of modern apprenticeships, the courts have recently held that this is not a contract of apprenticeship and on early termination an apprentice is not automatically entitled to claim damages for the remainder of the term of the apprenticeship (often at least two years).
However, there is still likely to be a contract of employment between the individual and the employer, and, as such, there may be an implied term that this can only be terminated with sufficient notice. This should be geared to the time it would reasonably take for the training provider to place the individual with another employer.
Helen can be contacted at: [email protected]
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