Worthingtons Solicitors consider the question of whether a student on a placement is considered an employee for the purposes of sustaining a claim for unfair dismissal
Is a placement student an employee?
In the recent Northern Ireland Tribunal decision of Watt v Lynsay Jones t/a Vermillion Hair Company (294/14 & 695/14 IT) the Vice President of the Tribunal considered whether a student on placement through a further education training programme and in receipt of Employment Maintenance Allowance could be considered an employee for the purposes of sustaining a claim for unfair dismissal.
The claimant in this case started to work in the Respondent’s hair salon shortly after leaving school at the age of 16 in June 2010.Thereafter the claimant started a hairdressing course in or around September 2010 and followed that course until September 2013 when she commenced an apprenticeship with the Respondent.
Prior to September 2013 the claimant worked in the salon for two days per week and received £20.00 or £25.00 per week as a ‘voluntary’ payment from the Respondent together with a weekly payment of £40.00 by cheque which the Tribunal concluded was an Employment Maintenance Allowance payment. During the hearing the Respondent also produced a ‘Delivery Agreement’which although describing the Respondent as an ‘employer’ referred to the Claimant as a ‘participant’ and concluded ‘It is understood that the Agreement does not constitute a basis of a contract of employment between any of the participating persons or organisations’.
The Tribunal opined that the issue to be determined in this case was;
“Whether the claimant had been a student on placement, or an employee of Ms Jones (the first-named respondent) in the period (which appears to be at least two years) before September 2013?”
The Tribunal further remarked that there is no case law of assistance directly on this point.
When considering the nature of the relationship between the Claimant and the Respondent prior to September 2013 the Tribunal ultimately concluded that the Claimant was not an employee during this time. Much of the Tribunal’s deliberations in this regard appear to have centred on the fact that the Claimant was in receipt of EMA under the ‘Training for Success Programme’. The Tribunal notes that the purpose of the scheme was to give people ‘the tools and the confidence to find work’ and further noted that it was designed for people who ‘have not yet secured paid employment and who still possess training entitlement’.
The Tribunal concluded that this ‘does not appear to be consistent with an employment relationship and is simply a payment in respect of further education.’ In the circumstances the Claimant was not an employee from September 2011 –September 2013 and as a result did not have the necessary 52 weeks of continuous service to ground a claim for unfair dismissal.
Although this case does provide useful guidance for employers providing placements to students through further education schemes we would highlight this area of law is very much fact specific.Each case must be considered on its own particular circumstances taking account of nature of the relationship and the mutual obligations which have developed between an individual and an organisation.