Flett v Matheson
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Lloyd,Lord Justice Wall |
| Judgment Date | 07 February 2006 |
| Neutral Citation | [2006] EWCA Civ 53 |
| Docket Number | Case No: A2/2005/0697 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 2006 |
[2006] EWCA Civ 53
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE BURTON (PRESIDENT) PRESIDING
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Wall &
Lord Justice Lloyd
Case No: A2/2005/0697
MR E LEGARD (instructed by Student Law Office NE1 8ST) for the Appellant
The respondent did not appear
This is an appeal against a decision of the Employment Appeal Tribunal, Burton J (President) presiding, whereby they allowed in part an appeal by Mr Liam Flett (the "appellant") against a decision of an Employment Tribunal held at Newcastle-upon-Tyne on 28 April 2004. The Employment Tribunal held that there was neither a contract of employment nor a contract of apprenticeship between the appellant and Mr S Mattheson (the "respondent") . The EAT held that the appellant was employed under a contract of employment but was not employed under a contract of apprenticeship and the appeal is against the second of those findings. The EAT awarded the appellant damages on the basis that he was an "ordinary employee": one week's wages stated to be £112.12. There are potential heads of damage for breach of a contract of apprenticeship not available to an 'ordinary' employee ( Dunk v George Waller and Son Ltd [1970] 2 All ER 630) .
There were three respondents before the Employment Tribunal, first EAB Electrical ("EAB") , for whom the appellant commenced work in 2002. They were long-established electrical contractors. The second and third respondents were John Cullerton and Sons Limited and the present respondent, to one of whom it was claimed there had been a transfer of EAB's business under the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("the 1981 Regulations") . EAB ceased trading in December 2002. On 14 August 2003, a preliminary issue was heard as to whether there had been a transfer of undertaking within the meaning of the Regulations. The respondent appeared in person. In a decision dated 4 September 2003, the Tribunal found that there had been a transfer from EAB to the respondent. There was no appeal by the respondent against that finding.
At the substantive hearing before the Employment Tribunal, none of the respondents were represented. The Tribunal made the findings already stated and concluded that there was "no jurisdiction to entertain the applicant's claim for breach of contract". It was held that the appellant was entitled to compensation of £1,074.70 by reason of EAB's failure to consult under Regulation 10 of the 1981 Regulations, liability to pay that sum passing to the respondent. The Employment Tribunal held that the contract was not within the definition in section 42(1) of the Employment Tribunals Act 1996 which provides:
"'contract of employment' means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing"
Before the EAT, the respondent was represented by counsel and Mr Paul Brown, of counsel, appeared as amicus curiae. The appellant was represented Ms Laura Kelly of the Student Law Office at the University of Northumbria. Before this Court, the only appearance was by Mr Legard, of counsel, on behalf of the appellant. We have the written submissions of Mr Brown to the EAT. Obviously, we would have welcomed submissions on behalf of the respondent but Mr Legard has been helpful and fair in his consideration of the evidence and the authorities.
The facts
On 14 January 2002, the appellant, then sixteen years old, commenced employment with EAB as a labourer. As to the next stage of the relationship, the finding of the EAT was as follows:
"It is wholly clear that the appellant, Mr Flett, was working for EAB under a contract, even prior to his entering into a tripartite, individual learning plan ("ILP") , which was produced before the Employment Tribunal. The document was signed on 10 September 2002, which is stated in the body of the document to be his "learning start-date". It is a tripartite document, and the three parties to the agreement, the ILP, were Mr Flett, who was then aged seventeen, as apprentice, EAB, described as "the company", and a Training Provider called JTL."
It is common ground that while the ILP was in operation, wages were paid by the employers. The appellant's object was to become a fully qualified electrician. As recorded by the EAT, JTL is a Government-funded and supported body under the aegis of the Learning and Skills Council and the Joint Industry Board responsible for providing training in the electrical field.
Insofar as the background against which the appellant was in 2002 employed may be relevant, Mr Legard relies on the statement of Mrs Brass, who was the proprietor of EAB following the death of her husband in November 2001. There had been a pattern of EAB taking apprentices. The respondent himself had been apprenticed to the firm in 1987. Another apprentice, Mr Lee Jordison, was taken on in 1997.
The Individual Learning Plan
The document signed on 10 September 2002 was on a printed form, headed ILP, with the relevant information written into the relevant sections of the form. The introduction provides:
"This Individual Learning Plan outlines a programme of training agreed between JTL and/or the company and the Apprentice, which will be carried out under Advanced Modern Apprenticeship arrangements. The apprentice shall have unrestricted access to information on the arrangements. The Apprentice is employed by the Company named in Section 2. It is underwritten by the Training Agreement and sets out what the Apprentice is aiming to achieve during his/her apprenticeship. It will also be used to review progress."
The printed part of the document also provides that: "This apprenticeship is funded by: Learning and Skills Council – NCS". The appellant answered the question whether he had a copy of his terms and conditions of employment in the negative.
Particulars of the parties are included (Section 1 to 3) and, in the section dealing with the appellant, the "career aim and employment objective" is stated as: "To become a fully qualified electrician". The "title of apprenticeship" (Section 4 headed – Training Period) is "AMA – Electrical Installation Engineering." The duration of training is stated to be 42 months and the "funding entitlement expiry date" is 9 March 2006. NVQ (National Vocational Qualification) to be achieved (Section 8a) is "Installing and commissioning electrotechnical systems and equipment" and the level is level 3. The anticipated achievement date is 9 December 2006. Particulars are given (Section 10) of the "Key skills to be achieved" and it is stated (Section 12 headed review arrangements) that: "This learning plan will be reviewed regularly, a minimum of twelve weekly from the start of training". Under the heading "On the Job" (Section 13a) , it is stated: "Specific attendance arrangements are as laid down in the apprentice's terms and conditions of employment". The "pattern of training" (Section 13b) is "off the job release training" and the college to be attended is "Gateshead".
The appellant is named in the document as "an apprentice". He twice signed it, as such, once under the following statement: "I have also requested that I be included in the distribution of information and articles by JTL whilst I am working toward the completion of my Advanced Modern Apprenticeship." The document was signed on behalf of the employer who confirmed that "This Individual Learning Plan is acceptable, that it will be supported by "the employer" and the apprentice's training began on the date shown in Section 4 (10 September 2002) . It was also signed on behalf of the JTL with an equivalent confirmation.
The Training Scheme for Apprentices
In considering the arrangement, the Employment Tribunal read with the ILP, although not expressly referred to in it, a document entitled "1983 Apprenticeship Scheme". It described a scheme called:
"1983 Joint Industry Board Training Scheme for Electrical Installation Apprentice Craftsmen and Technicians."
They queried whether the 1983 scheme was the current scheme and requested further information. They were assured that 'the documentation provided to [the Tribunal] [was] the documentation under which Mr Flett was employed".
It later emerged that the current JIB Training Scheme for Electrical Installation Apprentices in 2002 was a 1999 scheme, as amended in 2001. The EAT also considered, with the consent of the parties, the 1999 Scheme. For present purposes, there do not appear to be material differences between the two schemes and, as Mr Legard proposes, we consider the 1999 Scheme.
The relevant training scheme is described as the "1999 Joint Industry Board Training Scheme for Electrical Installation Apprentices". It was revised on 6 December 2001. It is provided in the introduction that the employer is required to be "fully involved in, and committed to, the training and assessment process." The purpose of the Scheme is to "define the entry, training and education of electrical installation Apprentices". Paragraph 1 provides that: "The purpose of the 1999 JIB Training Scheme is to define the entry, training and education of electrical installation Apprentices in England, Wales and Northern Ireland".
The main objectives of the Scheme are stated to be:
"(a) ensure that all training is carried out to the national standards defined by NET [National Electrotechnical Training] and accredited by the Qualifications and Curriculum Authority...
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