In this post, I will be looking at interns and volunteering as these two subjects come up time and time again when people with no HR experience are looking for a foot in the door. This does mean getting to grips with some employment law, but hey you want to work in HR, right?
Internships are an idea that has come over from the United States and have spread around the world, where they are normally undertaken by university graduates who work unpaid, sometimes for a considerable amount of time, normally the intern has the support of rich parents who support them over this period. However, where their use in the United States is common place, they have only started to become known in the UK over the past few years and they haven’t made an easy transition across the pond because of British/EU employment legislation.
So let’s look at the what you can and can’t do!
There is actually no legal definition of an intern, alternative names could be a work placement or work experience and the status of the person is determined in several ways.
They could be classed as a worker if they receive any payment for the work they do or a benefit in kind (this can mean travel and expenses).
Employers can’t decide that an intern is not a worker by saying or stating that it doesn’t apply or making a written agreement saying someone isn’t a worker or that they’re a volunteer.
A really important point to remember is that if an intern is promised a contract of future work, they will be classed as a worker and the employer will be liable for back pay and employers NI and tax obligations.
The definition of a worker is:
A worker is defined in regulation 2 (1) of the Working Time Regulations 1998 as an individual who works under a contract of employment or “any other contract, whether express or implied…whereby the individual undertakes to do or perform personally any work or services for another party to the contract”, provided they are not a client or customer of the individual’s profession or business.
- The individual will have a contract or other arrangement to do work or provide services personally for reward
- This contract can be expressed or implied. This means it can either be written down or verbal
- There is an element of reward, this can either be money or a benefit in kind, this includes the promise of a contract or future work
- They have to turn up for work even when they don’t want to
- The employer has to provide work for as long as the contract lasts
- They are not operating as their own limited company where the employer would be deemed as a customer or client
This then moves into what an employee is and what they are entitled to, so let’s briefly look at the definition:
According to section 230(1) of the Employment Rights Act 1996, an employee is someone who works under a contract of employment. This, however, is not defined by statute so the courts have constructed a number of tests to help them decide whether someone is an employee.
Although each case is decided on its own merits, there are some essential elements that must be satisfied:
- The individual has to have a contract with the employer
- The individual has to carry out the work personally
- There has to be “mutuality of obligation” between the two parties
- The employer has to have “control” over the work that the employee does
So it would seem that if a company suddenly decided to advertise a vacancy for an intern then they will be paid, however, there are a few exceptions.
Students who are enrolled on a further or higher education course which is based in the UK, are not entitled to the National Minimum Wage/National Living Wage if they take part in an internship that is part of their course, this might mean they take a gap year between studies. Normally students wouldn’t be looking for an internship at the end of their course because many employers run graduate training schemes. The most common advice is to arrange these whilst you are in your second year, many students leave it too late.
Briefly work experience students of compulsory school age, ie under 16, aren’t entitled to the minimum wage.
We will now move onto Voluntary workers
Workers aren’t entitled to the minimum wage if both of the following apply:
- they’re working for a charity, voluntary organisation, associated fund-raising body or a statutory body
- they don’t get paid, except for limited benefits (eg reasonable travel or lunch expenses)
So you won’t be able to volunteer for a commercial company.
Finally, we can look at work shadowing
The employer doesn’t have to pay the minimum wage if an internship only involves shadowing an employee, ie no work is carried out by the intern and they are only observing. The moment they start undertaking work then the relationship changes.
A lot of the above came about after it emerged interns were being exploited, for example, companies suddenly stopped using temporary worker via a recruitment agency because they could get an intern to do the work for nothing. In these instances, the intern was never a student!
A lot of companies do operate intern schemes and make sure that they pay their interns correctly.
You can find a useful fact sheet and checklist from the CIPD at:
Internships that work – CIPD factsheet