Modern apprentices, who work for an employer but are sent elsewhere to get trained, do not fit the traditional definition of "employee", that is: someone working under a contract of service or apprenticeship. The question, of course, is what legal status do they have?
In Flett v Matheson the employment appeal tribunal (EAT) has said that where the training responsibility is not that of the employer, the apprentice will, in most instances, have an ordinary contract of employment, overlaid by a training contract.
What were the facts in this case?
Mr Flett started working for EAB Electricals in January 2002, but subsequently entered into a tripartite "individual learning plan" with a third party training provider, JTL, in September the same year. The company was then involved in a transfer of its business to one of two other companies (it was not clear which) under legislation known as TUPE.
Having established that EAB had failed to consult and inform him of certain things under TUPE, this liability passed to the transferee and he was awarded just over £1,000. Mr Flett also claimed he was unfairly dismissed, but to succeed he had to show that he had been working under either a contract of apprenticeship or a contract of employment. If successful, the transferee would again be liable.
What did the tribunal decide?
The tribunal said that establishing his employment status was crucial. If he could prove he was an apprentice he could claim damages for the remaining period of his training (he was claiming over £50,000); but if he was an employee he was entitled to only one week's notice.
It concluded that there was some contract between Mr Flett and EAB, but, whatever it was, it was neither a contract of apprenticeship nor a contract of employment. And it dismissed his claim.
What did the EAT say?
In order to ascertain the status of Mr Flett's arrangement, the EAT had a good look at the differences between modern apprenticeships and the old common law contracts of apprenticeship.
Under the traditional arrangement, the agreement was between two parties - the apprentice and the employer. The apprenticeship was for a fixed term; the employer agreed to employ the apprentice for that length of time; and the employer had an obligation to educate and train the apprentice.
As such, if the employer terminated the agreement early, he or she had to pay damages to the employee, not only for their loss of earnings, but also, potentially, "for the diminution of their future prospects".
Modern apprenticeships, on the other hand, involve a tripartite arrangement: first, between the trainee and the employer; secondly between the trainee and the training agent; and thirdly between the training agent and/or the central qualifying body and the employer.
This is completely different from the two-way traditional apprenticeship agreement between the employer and the apprentice. The EAT said that the tripartite agreement governing Mr Flett's situation did not fit into this description and was not, therefore, a common law contract of apprenticeship.
But did he have a contract of employment? The EAT said that he did, and not just because Mr Flett was already employed by EAB before the training arrangements started.
It said that "every incident indicating employment seems, notwithstanding the paucity of evidence, to have been present and to have continued during the training period; and the relevant documents redound with employer, employee and terms and conditions of employment."There is little doubt that the appellant was working as an employee, and receiving wages as such."
Mr Flett was therefore awarded one week's wages - the sum of £112.12.