Are you an illegal intern?

Doing an internship? Ben Lyons, co-director of InternAware, explains your position in employment law

In the past decade, unpaid internships have become a big deal. The think-tank Institute for Public Policy Research estimates there are now around 128,000 of them and they're a fixture in many workplaces. The damage unpaid internships do to social mobility is also becoming familiar. Most are in London, many become available through closed networks and all are unaffordable for the many young people who cannot afford to work for free. As such, only the relatively well off get access to this crucial experience. Less remarked upon, however, is the potential illegality of unpaid internships.

Working nine to five

The terminology surrounding internships generates some confusion. Work experience, internships, sandwich placements, voluntary workers, volunteers and people taking part in work shadowing are all phrases used to describe situations of young people trying to gain knowledge or experience of graduate jobs. Many of these terms have quite different meanings, and the lack of precision is deeply problematic. The word �intern'" has no legal value. It's just a promotional term. In fact, the vast majority of interns would be regarded as �workers" under the law. This is because the legal meaning of a �worker'" covers many more relationships than those covered by formal written contracts.

The most important factor affecting an individual's work status is their practical relationship with their employer and the work that they do. The factors that indicate the status of a �worker" - such as a requirement to work certain hours, do assigned tasks and make a contribution of value to the employer - are found in the case of most internships. Under the National Minimum Wage Act, all workers aged 21 and older are entitled to pay of �5.93 per hour, and for those aged 18-20, �4.92 per hour. These are the wages most interns should be receiving.

But note that not all people who see themselves as interns are workers. Young people who are �work shadowing" cannot be treated as workers - and so get payment - because they are observing and learning as opposed to undertaking any working activity. More rarely, it is possible that an intern is legally a �volunteer", and so also not entitled to payment. Lots of individuals do genuinely volunteer for charities and political organisations, but many young people are incorrectly included in this category. The difference lies in the fact that �worker" interns are likely to work set hours and to be undertaking duties in exchange for a good reference, considerations which do not affect the genuine volunteer. Official government guidelines are clear: �Just calling someone a �volunteer" does not mean they don't have to be paid the national minimum wage."

People who can afford to work for free do so because of the necessity of work experience at a time of huge graduate unemployment. Those who experienced bad internships are rarely willing to come forward, even if they know the legal protection to which they are entitled. Interns are often prepared to endure exploitation in the workplace in exchange for a good reference from a respected organisation at the end. They take the view that it is worth a bit of short term pain for a smoother entry to a longer term post-graduation career.

See you in court

But all it takes for real change is a few more people coming forward. In November 2009, Nicola Vetta brought a case to the Reading Employment Tribunal claiming that her expenses-only internship was in breach of the National Minimum Wage Act. The tribunal was persuaded of this case and the judge ruled that Ms Vetta was in fact a worker, awarding over �2000 in lost wages to her. This case was unusual, not because most judges rule against interns but because hardly any interns take legal proceedings against the employers who refuse to pay them. With more interns coming forward, and taking their cases to more senior courts, a precedent can be struck. For example, only relatively recently, most trainee barristers and solicitors were unpaid. However, in 1999 the High Court ruled that they were entitled to the minimum wage. While this was later overturned, the change stuck and long term unpaid law pupilages are close to being a thing of the past.

Recently, government minister David Willetts announced: �The exploitation of interns is unacceptable and employment legislation must not be breached" and the Labour Party's new leader Ed Miliband publically promised to campaign to end unpaid internships. But our best chance of Britain becoming a country where graduate employment prospects are based on brains, not the size of your parents' bank balance, lies in the proper enforcement of a law which already exists.

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