Miss Maria Gatillo v GX Consultancy Ltd — 2018

At a preliminary hearing on 28 June 2018 the tribunal held that Miss Gatillo’s contract with GX Consultancy Ltd was a contract of apprenticeship and that her case should proceed as a contract claim arising from termination on 8 December 2017. She had started the apprenticeship on 3 October 2017 as a Graduate Level Apprentice Software Development Associate, on a four-year programme linked to her University of Dundee degree, with pay of £12,000 a year.

The tribunal found that the respondent raised concerns about her progress in meetings on 6 November and 24 November 2017, but it did not adequately specify the concerns, set reasonable and achievable targets, or provide a structured training plan. It also found that she had no software experience before starting and that criticism of her inability to explain the whiteboard coding exercise by early November was unjustified. The tribunal rejected the respondent’s contention that a lecturer’s remarks put her on notice of dismissal and found that the respondent gave her no warning that termination was being contemplated.

The tribunal further found that the dismissal decision had been predetermined because the dismissal letter was prepared in advance of the meeting on 8 December 2017. It rejected the respondent’s reliance on clauses 10 and 12 of the probationary provisions, held that the respondent had not proved that her performance or progress was so poor that it had become impossible to teach her the trade of software development, and noted that her university assessment results indicated progress. The tribunal therefore held that she was wrongfully dismissed and entitled to damages for breach of contract.

On remedy, the tribunal accepted past wage loss of £3,688.58 and estimated future loss of about £10,000 over the remainder of the apprenticeship, together with longer-term disadvantage in the labour market because she could not complete the apprenticeship or degree without a sponsoring employer. It found total financial loss exceeded the £25,000 jurisdictional cap under section 10 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994, so the award was limited to £25,000. The tribunal also found that the ACAS Code of Practice applied and that the respondent unreasonably failed to comply with it, but no uplift could be made because of the cap.