Interns and Volunteers: Legal Considerations for Employers

martin searle solicitors are pleased to be participating in the next Brighton & Hove Chamber of Commerce “Big Debate” on Wednesday 16 October. Business people from across the city will be meeting to discuss whether it’s ever OK to not pay someone for a day’s work.

The legal issues surrounding unpaid work are plentiful, and there are numerous opportunities for employers to make costly mistakes. Here are just a few of the legal issues I will be raising at the debate.

Internships, also known as work experience placements, have increased considerably in recent years. There has been much debate and controversy about the status, value and ethics of internships. The TUC estimated in March 2010 that one in every three interns is unpaid.

In April 2011 the Government published a strategy “Opening Doors, Breaking Barriers – A Strategy for Social Mobility” aimed at curbing the practice of unpaid internships. This encouraged employers to open up their recruitment process and to offer financial support to their interns.

In addition to the questions of morality surrounding unpaid work, there are also legal considerations in relation to engaging volunteers and interns.

The term “intern” or “volunteer” can encompass a range of different types of relationships, from purely voluntary to those that are clearly contractual. This ambiguity makes it difficult for organisations to appreciate any legal obligations they may have towards their interns or volunteers.

Case law on the status of interns has started to develop, particularly in relation to their entitlement to the minimum wage. For example, whether receiving expenses can entitle an intern or volunteer to the National Minimum Wage.

Caution needs to be taken in terms of paying expenses. In an Employment Appeal Tribunal case, a person who carried out administrative work with the Migrant Advisory Service for two years and was paid volunteer expenses of £25, which increased to £40 per week, was found to be an employee. This was because she incurred no actual expenses. She was therefore entitled to pursue her claims for unfair dismissal and discrimination.

There is also case law on whether a volunteer or intern falls under the Equality Act or the Equal Treatment Framework Directive. In X v Mid Sussex Citizens Advice Bureau and Another 2012 this volunteer was found not to be “in employment” within the definition in the Disability Discrimination Act (now known as the Equality Act). This was because it was not the intention of the draughtsman of the Framework Directive to provide protection to volunteers in her position.

Another volunteer case in relation to the Citizens Advice Bureau, this time in Newham, saw the EAT decide that the volunteer had entered into a binding contract and he was found to be employed under a contract of employment. This was because the contract involved him working specific times and for a minimum period and they agreed to repay his expenses and provide him with the basic training.

Apart from what status and therefore what employment rights volunteers and interns have and whether they should be paid the National Minimum Wage, there are also other consequences of hosting volunteers and interns. This includes recruitment vetting, protection of Intellectual Property rights, Data Protection and Health and Safety to name but a few.  

As internships and voluntary roles become more and more widespread, for good or ill, employers need to understand the legal distinctions and their subsequent duties. This will protect both their own business, and will provide clarity for the intern or volunteer.

Regardless of the moral debates around payment of volunteers and interns, and at what rate they should be paid, it is important to ensure that you end up with the type of employment relationship that you initially envisaged would suit your organisation.  

There are some great speakers planned for the Big Debate this week and it would be good to see as many Chamber members as possible. martin searle solicitors will be attending and will provide useful legal factsheets, including templates for volunteer and internship contracts, to ensure peace of mind and best practice. To book a free ticket at this event, visit http://www.businessinbrighton.org.uk/event/big-debatenever-mind-living-wage-what-about-no-wage-all

Fiona Martin

Director and Head of Employment Law, martin searle solicitors

If you want to contribute to the Chamber blog, contact us on hannah@brightonchamber.co.uk