Summer is traditionally the season that organisations welcome young people for work experience. However, there are legal traps for the unwary. In this article we give some tips for employers offering internships and work experience for under 16's.
It is vital that employers taking on young workers are aware of their legal obligations as not only could failure to recognise and follow these result in costly legal liability but, the reputational fall out from negative PR could also be highly damaging. We looked at this in our previous article.
'Intern' and 'internship' is not a recognised legal concept and confers no special status on those labelled as 'interns'. The words appear to have migrated from the USA and is a convenient short hand for a form of work experience offered by an organisation, usually lasting for a fixed, limited period of time.
Internships tend to be undertaken by students and graduates looking to gain relevant skills and experience in a particular field.
Employers frequently use these placements to assess a student's or graduate's capability and they will often recruit future employees from their interns rather than advertising their vacancies externally.
While the common perception is that an intern will be a young person, organisations need to be cautious of falling foul of age discrimination laws and should never exclude mature applicants from applying for such roles. An older person could just as easily be seeking training, perhaps due to a career change, as a younger person.
Is it necessary to pay an intern?
The answer to this question depends on what the intern is doing rather than the title itself. Simply calling a person an 'unpaid intern' or 'volunteer' does not prevent them from qualifying for National Minimum Wage (NMW) or the National Living Wage (NLW) for those aged 25 and over if, in reality, they are carrying out work for the organisation. However, genuine 'work shadowing', which does not involve any work actually being carried out by the individual, will not qualify for NMW.
Factors that may be relevant to the question whether an intern is a worker include:
- whether the student is actually doing work of benefit to the organization. If they are genuinely just shadowing someone rather than working themselves they will not be a worker.
- the length of the placement. The longer it goes on the more risk of the intern being considered a worker (weeks rather than months might provide a credible argument that someone was not a worker).
- whether they are genuinely able to come and go as they please or whether they must comply with instructions and are required to perform a certain amount of work.
- the number of hours worked and when these are performed. If the arrangement is flexible and fluid they may not be a worker, but if they are required to be in a certain place for a set number of hours each day they look more like a worker.
Anyone who is providing personal service to the employer during the internship is likely to be a worker and therefore entitled to be paid.
This raises the question that it would be difficult to test the intern's ability and prospect of employment if they simply watch how a job is done.
It should be noted however that where an internship not exceeding one year is undertaken by a student as part of a UK-based higher education or further education course, they are specifically exempt from NMW. However, the government is now encouraging organisations to pay interns irrespective of whether they qualify for the NMW.
HMRC is considering targeted enforcement in sectors where internships are commonplace.
Should you enter a formal agreement?
There is no legal obligation to have an internship agreement, but they are useful to clarify the expectations of both parties. Whether you are paying the intern or not, we suggest using a short-term agreement which sets out:
- placement dates
- hours of attendance
- rates of payment (if you are paying the intern)
- location of internship
- supervisor's details
- specific learning objectives
- how expenses are treated
- health and safety
It is also important to have a dedicated supervisor to mentor the intern and provide feedback on their performance throughout and at the end of the placement.
Work experience for under 16's
Work experience is the short term placement of a young person with an employer to allow them to find out more about the particular industry and the workplace. It can be an important period in shaping a child's thoughts of work; in many cases it's the first contact a child will have with the world of work. An organisation offering work placements, should aim to:
- give the child an induction to help them understand the nature of the business;
- explain what will be expected of them during their work placement;
- explain health and safety requirements for the company;
- identify a supervisor/trainer to oversee the child's work during the placement; and
- give feedback at the end of the placement.
As an employer, you should make sure you have adequate insurance in place to protect you as the employer but also the child. Furthermore, you should ensure that the child only carries out 'light work', this being work that is unlikely to be harmful to the child's safety, health or development.
Should you pay the child for the work experience period?
The short answer to this question is no as there are no statutory requirements on the rates of pay that can be offered to children and as such, under 16's are not entitled to receive the NMW. In reality, most work experience placements, particularly those organised through academic institutions, are unpaid.