Mr D Simpson v Westcott Refrigeration & Air Conditioning Limited — 2021

The claimant was employed by Westcott Refrigeration & Air Conditioning Limited as a trainee engineer from 3 August 2020 to 4 January 2021. Although the paperwork used both “apprentice” and “trainee engineer”, the tribunal found that the relationship was, in substance, a common law contract of apprenticeship. It relied on the parties’ shared understanding that the role was focused on learning, the use of the apprenticeship rate of pay, the planned progression towards college-based training and qualification, and the fact that the claimant worked under supervision rather than as an ordinary employee doing productive work alone.

Applying the authorities it cited, including Dunk v George Waller and Son Ltd, Chassis and Cab Specialists Ltd v Lee, Flett v Matheson, and Commissioners for HMRC v Jones and ors, the tribunal held that the apprenticeship was for a fixed term ending on 3 October 2021. It accepted that the written contract contained a termination clause and probationary wording, but concluded those provisions were standard wording and did not alter the underlying apprenticeship character of the arrangement. On that basis, the respondent was not entitled to dismiss the claimant for redundancy before the fixed term expired, and the breach of contract claim succeeded.

The tribunal also upheld the claim for accrued but untaken holiday pay. It found that the holiday year ran from 1 May to 30 April, that the claimant had worked for five complete months by the time of dismissal, and that his contractual leave entitlement complied with the statutory minimum. On its calculations, the claimant accrued 8.35 days’ holiday excluding bank holidays, had taken 4.5 days, and therefore had 3.85 days outstanding at termination.

No final monetary award was set in the liability judgment. The tribunal directed the parties to try to agree compensation and holiday pay by 14 September 2021, failing which a separate remedy hearing would be listed. It noted that damages for the breach of contract claim would need to take account of the fixed term to 3 October 2021 and any mitigation issues, but those matters were not decided in this judgment.