When 'you're fired' just won't suffice
Contrary to the impression given by Sir Alan Sugar and the BBC in The Apprentice, as a case reported in this issue illustrates, "you're fired" is not something easily said to an apprentice.
In Flett v Mathesonthe Court of Appeal held that an employee engaged under a modern apprenticeship could be an apprentice in the rather more old-fashioned sense. As a result, his dismissal resulted in possible entitlement to damages far in excess of the week's notice pay that he would have received as an ordinary employee.
The essence of Mr Flett's claim is that an employer that takes on an apprentice is taking on more than just the obligation to pay an employee for his or her service. The employer is also obliged to provide training for a specified period - even though, as this case demonstrates, much of that training is now likely to be provided by a third party. Importantly, for an individual who completes an apprenticeship, the result is a status that - as the courts have put it - equips him or her for the modern workplace. Because of this, the courts have held that, until the apprenticeship is completed, the employer does not have the same rights to dismiss the apprentice as it does an ordinary employee. While a dismissed employee's remedy for wrongful - as opposed to unfair - dismissal is confined to a payment in lieu of notice, an apprentice is entitled to be compensated for loss of both the training and the status in the labour market that a completed apprenticeship provides.
No doubt Sugar has ensured that Michelle Dewsbury's contract is a normal contract of employment, rather than a true contract of apprenticeship - she will, after all, be paid rather more than Mr Flett was. However, a consideration of the employment law issues raised by the BBC programme is appropriate.
There is much to object to in The Apprentice. It could be argued that it promotes the sort of management that regularly lands lesser managers than Sugar in an employment tribunal. Pointing at someone and saying "you're fired" does not, after all, entirely square with the statutory dismissal procedure introduced under the Employment Act 2002. What about the written invitation to the meeting? Where is the opportunity for both sides to explain their case? And to whom does one appeal once Sugar has made his decision?
Despite the catchphrase, however, The Apprentice is not about dismissal, but about recruitment - the prize for winning the competition being a job working for Sugar. Whatever one might think about the desirability of such a prize, it seems clear that the entire programme - from the initial sifting of applications to the final decision made by Sugar - would constitute "arrangements … for the purposes of determining who should be offered that employment" under the discrimination legislation.
This raises the tantalising prospect of one of the many rejected applicants bringing a discrimination claim. After all, the programme hardly serves as an example of best practice in the field of recruitment. Where is the person specification? What are the selection criteria? To what extent is selection determined by how telegenic an applicant is? The scope for unconscious discrimination is huge and it seems unlikely - given what we saw on television - that Sugar would be able to prove to a tribunal that no discrimination had occurred.
Admittedly, I clearly need to spend less time thinking about employment law, and get out more. There is a serious point here, however. Programmes such as The Apprentice influence what we regard as normal and appropriate behaviour in the workplace. Not much that we saw over the 12 weeks of the programme would fall within the category of good management practice. Obviously, however, a series of well-conducted and structured interviews would make for poor television, and The Apprentice was certainly compelling viewing. Perhaps next year the BBC could allow Sugar to be cross-examined on his recruitment practices by one of our leading employment barristers - any volunteers?
See Flett v Matheson for more.
