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Author: Matthew Kilgannon
With the use of interns now featuring on the Govenment's radar with the issue of a press release last month, specialist employment law Partner, Matthew Kilgannon, higlights the issues that you need to consider if you engage interns.
Internships are a legitimate way for an individual to secure meaningful work experience that could benefit them in securing a job and/or help them with their career choice. They also give you access to individuals whom you can assess before you ultimately employ (often without the need to recruit) and help encourage people to work in your trade/profession.
While internships are increasingly common, many feel they are now being abused. The Government is calling for any unpaid internships of more than four weeks to be banned and, regardless of the length of the internship, interns may acquire certain employment protection.
There are two categories for you to consider; whether an intern is an “employee” or a “worker”.
Employees have all the rights of a worker, plus the right to claim unfair dismissal. However, in order to claim ordinary unfair dismissal, two years' continuous service is required. Most interns will be engaged for less than two continuous years, so this may not be of much concern to you. However, if you engage an unpaid intern (or volunteer) for more than two years' duration that in itself is likely to be evidence that they are an employee.
Therefore, your main focus is likely to be whether the intern is a "worker". Whether somebody is a worker often falls down to the following test; "…the individual undertakes to do or perform personally any work or services for another party…"
If there is "mutuality of obligation" (i.e. duties flowing between you and the intern) and the intern is providing the service personally then the intern will most likely be a “worker”. Typical signs that there is "mutuality of obligation" are that:
If these are present then, in all likelihood, the intern will be a “worker”. If an intern is a “worker” they will be entitled to:
1. The right to receive the National Minimum Wage (NMW);
2. Statutory rights, such as the right paid annual leave (but not the right to be paid a redundancy payment, nor to claim unfair dismissal – for this they need to show they are an “employee”); and
3. The right not to suffer discrimination.
Of those, the one that should cause you most concern is the right to be paid the NMW. Often internships are unpaid, so you need to be very careful to ensure that the individual is not a worker so that you avoid any obligations under the NMW.
It is advisable to have an agreement in place with any interns, so you and they are clear on their/your rights and duties. While the agreement should seek to protect you, what is more important is how you treat/manage/supervise the interns, as this will determine their rights.
As you can see from the Government article (above), there is also concern that interns are generally awarded based on “who” somebody knows, not “what” they know. This means that young people from low-income backgrounds maybe excluded; meaning you could miss out on a wider pool of talent and certain individuals are missing out on career opportunities.
If you are concerned how your business uses or engages interns (or volunteers) then please contact a member of the employment team to discuss further.