We are a large design agency and operate a successful work experience programme. In return for hands-on experience, applicants work in our office for two full days per week. As we classify this as voluntary, the interns do not receive any payment for their help. What are the implications of bringing interns on board without pay and is there anything else for us to consider?
The legal status of interns is not clear cut. There is a huge range of different types of internships, from the purely voluntary to those that are clearly contractual, and those that fall in-between, which can be difficult to define. This lack of definition makes it problematic for companies taking on interns to understand any legal obligations that they may owe them.
If you view your interns purely as volunteers, you will want to avoid the creation of a legal relationship in which they are entitled to rights as an employee or a worker. There have been a number of cases that have explored the nature of the relationship between the organisation and the “volunteer”, including Migrant Advisory Service v Chaudri EAT/1400/97.
Mrs Chaudri worked four mornings a week and was paid volunteer’s “expenses”, even though she incurred none. She was also paid when on holiday or sick. She claimed unfair dismissal and sex discrimination. The Employment Appeal Tribunal (EAT) found that Mrs Chaudri was actually an employee because the payments she received were for “work” and not reimbursement.
In another case, Murray v Newham Citizens Advice Bureau UKEAT/1096/99, Mr Murray, ostensibly a volunteer, claimed disability discrimination. The EAT found that, instead of being a volunteer, Mr Murray was actually an employee, because his volunteering agreement constituted a contract of employment. This was because the agreement stated that he would work at specific times and for a minimum period, and would receive expenses and basic training.
However, in a final example, Melhuish v Redbridge Citizens Advice Bureau EAT/0130/04, the EAT upheld a tribunal decision that an unpaid volunteer was not an employee. The existence of required standards or guidelines to be followed by the volunteer did not create an obligation on him to attend work or any mutuality of obligation between the parties. Further, the provision of training courses was not enough to represent remuneration.
With the above cases in mind, if you take the following practical steps, you will minimise the chances of creating a legally binding contract in which your interns are deemed to be workers or employees:
- draft a volunteer agreement, choosing the language carefully – don’t use words that create obligations on the volunteer;
- avoid making payments that could be seen as wages – if you reimburse expenses, ensure that they actually match the receipts;
- avoid or minimise benefits that could be seen as consideration as part of a contract; and
- minimise the obligations on the volunteer – they should be permitted to refuse tasks and choose when they want to work.
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Kim Abbott, solicitor, Weightmans LLP
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