The typical criteria of the ordinary employment contract –employment and dependency– concur, which shows that the presumption of an employment relationship must be applied in the relationship with an intern.
Judgment delivered by the Superior Court of Justice of Castilla y León/Valladolid on 18 October 2017 [AS\2017\1990]
The purpose of this appeal is to analyze if we are dealing with an internship or, on the contrary, a common labor relationship. In this sense, both in internships and employment contracts there is an activity that is subject to remuneration, hence the area separating both institutions.
In accordance with the case-law of the Supreme Court, internships are, in general, monetary or in-kind assignments aimed at enabling the study and training of the intern. Even though it is true that such study and training can often result in actual work being carried out, we must bear in mind that such work is never incorporated into the production management of the institution that grants the internship. Hence, although the intern performs an activity that can be understood as work and receives an economic allowance in response to it, on the contrary, the one who grants the internship and makes it effective can never be confused with the own condition of the employer since it does not incorporate the intern’s work into its equity.
According to this doctrine, for the Superior Court of Justice –as we have already said– we are facing an authentic employment relationship. The facts that support such decision are those that are exposed below.
An intern in a music band is the case analyzed. Thus, the director of the music band informs that he has not taken any type of record of the classes taught, nor identification of dates and times and that no personalized classes have been given, with the intern having participated in the general rehearsals in the schedules established in the calls for internships and in performances of the band; this information from the director shows the scarce training provided to the intern despite the fact that the acquisition of the same is the fundamental purpose of the internships.
From another perspective, it is argued that because of his age –43 years–, he can no longer be qualified as a young professional in a period of musical development and that the very reiteration of internships disfigures its formative purpose, under which it is intended to hide a true employment relationship. Indeed, it seems clear that the extension of calls distorts the training purpose of the scholarship that might have been in the first or second year, but not in the eighth, when the scholar worked as a musician on his own or someone else’s with some experience and musical training had to be accredited without needing the internships in the band, the main objective of the successive calls of internships.
Another important aspect is that the scholar was an irreplaceable and necessary piece for the band. In addition, he had the obligation to attend at least three weekly rehearsals and to participate in all the performances offered by the band –provision of services–, receiving in exchange a sum of money – retribution– that each year was set in the respective call of the internship, which highlights that this concealed in reality an employment relationship.
On the other hand, there were differences in the uniform with the intern but they disappeared on a date that could not be determined; Similarly, the fact that the intern should enjoy his annual leave when the band lacked activity shows a subjection to the power of the employer’s organization; and, finally, in the participation in the training activities that were given in the educational centers that were reserved exclusively for interns, which is logical, being –theoretically– an intern during the apprenticeship period.
In short, the typical criteria of work are appreciated, as there is employment and dependency.