With youth unemployment at an all time high, even unpaid internships are the subject of tough competition. However, warns employment lawyer David Jepps, this is not a bonanza for employers; employers need to beware.
So you have this great idea and there are not enough hours in the day to get it developed and launched. It's a ruthless job market out there and there are lots of good people who have recently been made redundant. You could probably find someone willing to help you with your project for little, if any, salary. Indeed, you would be doing them a favour as no one wants an awkward gap on their CV, or maybe helping you out in this way could be the stepping stone they need for greater things. So you reach out through your social network, find someone you like and offer them work experience, an internship or just ask them to help.
Have you just employed someone without knowing it?
Recent developments suggest that there is a growing risk of falling foul of employment laws when using interns.
Are interns employees?
Much of the time, although they are intended not to be, interns are in fact employees or they have most of the rights associated with a contract of employment.
Traditionally work experience has involved students shadowing you or your colleagues for short periods of time but not actually working.
Internships (a phrase imported from the United States) have been more formal and have involved proper work, often being undertaken by university students looking to break into a particular area after finishing their studies or even as part of a course of study. Usually interns have been unpaid.
There is no legal definition of an intern in the UK. However, although carefully drafted documentation might help avoid an intern falling within the strict legal definition of an employee, much employment-related legislation is drafted in such a way that it will apply to "workers" working on any basis other than as a genuinely self employed individual.
Why does employment status matter?
If your intern is really an employee, then employment status is triggered, and this has a number of legal implications including:
The law looks past whether you call an individual an intern and to the heart of what the individual is actually doing for you: if they are really working for you then they are as good as employed by you. You need to appreciate that interns often qualify for employment-related rights in order to establish the nature of your legal duties to them and to manage risk accordingly.
It is a good idea to have a simple internship agreement to record accurately your respective duties to each other. The provisions of internship contracts often include the following terms:
For your own protection, such an agreement should also include the following:
Penalties for treating an employee as an intern
There are stiff penalties and criminal sanctions for getting this wrong. If HM Revenue and Customs believes that individuals may be working for you without being paid then they can investigate this. If they conclude that your intern has actually been working for you and is not lawfully excluded from the minimum wage and should have been paid, then HMRC has the power to order you to pay them the minimum wage with retrospective effect from the day the intern joined. In addition, HMRC will require you to pay employer's National Insurance Contributions and tax, usually with penalties and interest for late payment. Non-payment of the minimum wage is also a criminal offence which is punishable by a hefty fine.
In addition, the intern may apply to an employment tribunal to demand paid holiday. If the intern then leaves or is dismissed on account of your failure to offer paid holiday, then you will have unfairly dismissed them, (even if the intern has worked for you for less than a year) and you will be liable to pay significant compensation.
Recently, alarm bells have been sounding louder and louder for employers.
In September 2011, Graduate Fog's "Pay Your Interns" campaign was launched with the intention to name and shame employers. Other pressure groups have emerged, such as Interns Anonymous and Intern Aware.
In November 2011 the Guardian reported that Government lawyers have warned that many thousands of interns should be paid.
In recent years, employers have noted that HMRC has been looking more closely at the employment status of interns, although to date only a handful of prosecutions have been brought by HMRC under minimum wage legislation.
Many interns will not kick up a fuss, realising that to do so may jeopardise the first steps onto a lucrative career ladder. However, some interns backed by unions have had widely reported employment tribunal victories:
Playing it safe
If they are an intern without question, then have an internship agreement with them including the terms listed above.
Where there is any doubt, for example where the intern is not working in connection with a higher education course or official training programme, then it is best to assume they are really an employee. In which case, have a written contract of employment, ensure that you pay the minimum wage and observe the minimum paid holiday entitlements referred to above.
If your organisation is a charity, special exclusions from the National Minimum Wage apply to volunteers.
If you are looking for a practical solution to get more manpower without a cost, then using an intern in the true sense is probably not it. However, there may be a way, although practically businesses normally only use this route for senior or key individuals. The solution is for the individual to be genuinely self employed and for their reward to be paid in shares or a share of profits from the business the individual helps create.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.