The claimant wished to undertake a course in car body repair and was placed with the respondent for two days a week at his car body repair workshop. It was made expressly clear through ‘The Delivery agreement’ signed by all parties, including the claimant's college, that the agreement did not constitute a contract of employment between any of the participating persons or organisations. The respondent became increasingly concerned in relation to the claimant’s errors at work, both in terms of their number and seriousness and a number of concerning incidents were cited. After voicing his concerns with the College, the respondent claimed that he was advised to ‘let him go’. 

The tribunal briefly analysed the matter of whether the claimant was an ‘employee’ for the purposes of the legislation and answered in the affirmative. The failure of the respondent to follow the statutory procedures rendered the claimant’s dismissal automatically unfair under Article 130A(1) of the 1996 Order. 

However, the Tribunal had a high level of sympathy for the respondent and considered the authority of Polkey v AE Dayton Services Ltd [1987] IRLR 503 and in particular whether: "in the light of the circumstances known to [the employer] at the time of dismissal that consultation or warning would be utterly useless". The tribunal thus reduced the minimum basic award by 100% to nil and awarded the claimant only the sum of £45.92 in respect of holidays accrued but not taken.

PRACTICAL LESSONS

Whilst it was held that the claimant was unfairly dismissed, in reality the outcome of the case reflected the fact that had the claimant followed the statutory dismissal and disciplinary procedure the claimant would in any event have been fairly dismissed. The claimant’s own contributory fault was quantified as 100%. This case illustrates how employers who technically fall foul of the statutory dismissal procedures can be vindicated if their conduct is otherwise justified. In this particular ‘apprentice worker’ scenario the employer was ultimately protected by seeking and then following the advice of the claimant’s own educational institution.