Legal

Understanding the legalities of work experience and internships

18 Sep 2018 By Yvonne Gallagher

Every summer sees a round of students and graduates embarking on work experience. But such arrangements need careful consideration to avoid scope for claims and reputational harm. Yvonne Gallagher reports

Paid or unpaid?

If an individual is ‘working’, then national minimum wage obligations apply. For those aged 18-20, the rate is £5.90, rising to £7.38 for 21-24-year olds and £7.83 for those over 24.

HMRC offers guidance that individuals who are simply ‘shadowing’ (observing but not undertaking any work themselves) are not entitled to the minimum wage. However, if an intern is asked to produce work, which is visibly used by the organisation, they will be treated as a worker who is entitled to the minimum wage. Examples where the minimum wage obligations arise include data entry/analysis, uploading website material and other administrative tasks.

This can be enforced either by the individual bringing a claim during or at the end of their internship (they have three months in which to do so) or by HMRC itself. Formal student work placements are excluded from the minimum wage obligations, as are charity volunteers.

Holiday pay

Those entitled to minimum wage will also have a right to paid leave. If an internship lasts only for a couple of weeks, annual leave accruing at 20 days a year plus bank holidays will not amount to much. For a six-month contract, however, a right to 10 days’ paid leave accrues, and if the individual is not allowed to take that leave they will be entitled to 10 days’ pay on termination.

Dismissal and discrimination rights

Protection from unfair dismissal arises after two years’ continuous service and is unlikely to be relevant for interns. However, protection from unlawful discrimination applies to all. Therefore, the selection processes for internship or work experience programmes need to be transparent, to avoid arguments of unlawful discrimination. 

Harassment constitutes discrimination and is defined very broadly as conduct which violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. The conduct must be related to a protected characteristic such as age, disability, gender, race, religion and sexual orientation.

In a #MeToo, post-Weinstein age, the readiness of individuals to speak out against the unacceptable behaviour of others in the workplace is increasing. For employers, particular risk areas include after-work social activities, especially where alcohol is involved, and organisations should ensure that all employees are educated as to what behaviour isn’t acceptable.

Confidentiality

When bringing inexperienced interns into a business, any privacy expectations surrounding company information should be made clear, particularly if the business or clients are newsworthy or high profile.

Additionally, if you do not want individuals to publish details on their social media (namely where they are, who they are working with and what they are working on), then you should inform them on day one. To safeguard this and minimise the risk of an intern disclosing confidential information, it can be useful to require new starters to confirm an agreement in writing. 

Reputational issues

It is worth keeping in mind that lengthy internships in which no payment is made have potential reputational risks, particularly given ongoing discussions on whether protection from discriminations on socio-economic grounds should be added to the Equality Act. 

In addition, an unstructured placement may also damage your brand in the graduate recruitment market. In a social media age and with platforms available such as Glassdoor, employers should assume that bad experiences will likely be shared. 

Safeguarding

Finally, while many interns will be of working age, some school leavers will be under 18 in the summer in which they carry out work experience and therefore additional responsibilities arise for ensuring that their wellbeing is protected. 

Yvonne Gallagher is an employment partner at Harbottle and Lewis

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