Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 216/05

CLAIMANT: Stacey Jean Garvin

RESPONDENT: Lewis Gibson

DECISION ON PRELIMINARY ISSUE

The unanimous decision of the tribunal is that the claimant is disqualified from the right not to be unfairly dismissed by the provisions of Article 140 of the Employment Rights (Northern Ireland) Order 1996 regarding a minimum period of continuous employment. The claimant's claim of unfair dismissal is therefore dismissed.

Constitution of Tribunal:

Chairman: Mr Wimpress

Appearances:

The claimant did not appear in person and was not represented.

The respondent was represented by Mr Peter Coll, Barrister-at-Law, instructed by James Doran and Company, Solicitors.

1. A pre-hearing review was convened in this matter in order to determine the following preliminary issue:

- Whether the claimant is disqualified from the right not to be unfairly dismissed by the provisions of Article 140 of the Employment Rights (Northern Ireland) Order 1996 regarding a minimum period of continuous employment.

2. The Tribunal received a small bundle of documents from the respondent and heard evidence from Lewis Gibson and Catherine Short.
3. In her claim dated 16 January 2005, the claimant complained of unfair dismissal by Mr Lewis Gibson of Hair Traffic, 15 Botanic Avenue, Belfast. It is not necessary to dwell on the background to the dispute between the claimant and the respondent which gave rise to these proceedings, save to say that there appears to have been a dispute about the method by which staff were paid as a result of which the claimant left the respondent's premises on 6 November 2004 and did not return.

The facts

4. The claimant was taken on by the respondent as a Jobskills trainee on 3 March 2003. The claimant's claim gives May 2002 as her start date, but I am satisfied on the basis of the evidence given by Mr Gibson and Mrs Short that this is not correct. The tribunal's attention was drawn to a model training agreement ('the agreement') issued by the Hair Academy College, 10-12 Rosemary Street, Belfast to which the signatories were the claimant and Mrs Short. The agreement was designed to make provision for a vocational training programme under Jobskills. The agreement had a dual purpose insofar as it was intended to cover trainees, both at National Vocational Qualification ('NVQ') Levels 2 and 3.
5. The claimant was at NVQ Level 2 and, as such, was engaged as a non-employed trainee under the agreement. The agreement provided for a training allowance of £40.00 per week together with a reimbursement of approved travel costs in excess of £3.00 per week. The agreement further provided that the trainee would not be liable for National Insurance Contributions or Income Tax unless the trainee had additional independent income. The agreement also dealt with such matters as – hours of attendance, sickness absence, authorised and unauthorised absences, discipline, health and safety, industrial injuries, insurance, trade union membership, training and transfer between schemes. Of the £40.00 weekly payment made under the scheme, £25.00 was retained by the College to cover its expenses and £15.00 was passed on to the Training Provider, in this case Mr Gibson.
6. Once NVQ Level 2 had been successfully completed, a trainee would have the opportunity of moving on to NVQ Level 3. At this stage, the status of the trainee would change to that of an employed trainee. Paragraph 6(iii) of the agreement, provides that an employed trainee receives a wage from the employer and normally will have a contract of employment. This is to be contrasted with Paragraph 6(ii) which provides that a non-employed trainee receives a training allowance from the Training Organisation and does not have a contract of employment. The claimant was due to complete NVQ Level 2 training on 24 April 2004 and progress to a NVQ Level 3 Modern Apprenticeship and onto employed status. She therefore had the status of a non-employed trainee up until 24 April 2004 and thereafter until 6 November 2004 employee status.

The law

7. The right not to be unfairly dismissed from employment is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996. Article 140(1) of the same Order provides as follows:-

"(1) Article 126 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year, ending with the effective date of termination."

8. The claimant completed her NVQ Level 2 training on 26 April 2004 and then moved to an NVQ Level 3 Modern Apprenticeship. The respondent therefore contended that the only relevant period of employment was from 26 April 2004 up until 6 November 2004 and as this represented just over six months employment, she clearly did not fulfil the one year continuous employment requirement for qualification to complain of unfair dismissal.
9. Mr Coll referred the tribunal to the decision of the Employment Appeal Tribunal in Flett v Matheson [2005] IRLR 412. This case deals with the Modern Apprenticeship concept which involves a tripartite relationship between a trainee, a training provider and a training college. In this judgement, Mr Justice Burton considered how this concept fitted in with contracts of apprenticeship, as referred to in the equivalent legislative provisions in England and Wales. According to Mr Justice Burton the crucial question is not what the contract is called, but simply whether there was a contract of employment and, if so, what were its terms. Although the Court of Appeal has recently allowed in part an appeal against the EAT's judgment, Flett v Matheson [2006] EWCA Civ 53, on the basis that the Employment Tribunal required to give a further consideration to the evidence, the key question as identified by Mr Justice Burton remains germane to these proceedings.
10. Applying a similar approach to Mr Justice Burton in the present case, I am satisfied that prior to 26 April 2004 the claimant did not have the benefit of a contract of employment, but rather that her status was that of a non-employed trainee. As the claimant ceased to be employed by the respondent on 6 November 2004, she does not have the requisite one year's continuous employment in order to qualify to complain of unfair dismissal. The claimant's claim of unfair dismissal is therefore dismissed.

Chairman:

Date and place of hearing: 24 January 2006 in Belfast

Date decision recorded in register and issued to parties: