Employment Status of Interns?
It is common knowledge that interns students on work experience and volunteers would not usually be expected to receive payment for spending a few weeks with a company with the intention of gaining some experience.
However what happens when a spot of work shadowing to gain an insight into a business turns into working for nine hours a day doing the work of a full-time and fully-paid employee.
This is what happened to Chris Jarvis a video games design graduate after he signed up for the position of a £D Environment Artist intern with Sony Computer Entertainment for four months in September 2012.
Mr Jarvis expected that he would be shadowing a Sony designer in order to learn about the company. However in reality he found himself to be in the office from 9:30am to 6:00pm every day testing 3D artwork for games.
Mr Jarvis approached Sony to inform them that they owed him at least the National Minimum Wage of £6.19 per hour. However Sony stated that he was only a volunteer and therefore was not entitled to any payment.
The case went to an Employment Tribunal and Sony paid £4600 to Mr Jarvis before the claim reached a final hearing which was £1000 more than he asked for originally. Mr Jarvis would not agree to enter into a confidentiality agreement with Sony.
Internships work placements and work experience have no legal status of their own. Their rights will depend entirely on their employment status as a worker employee or volunteer.
If an intern qualifies as a worker they are entitled to be paid the National Minimum Wage.
A person will generally be classed as a worker if:
– they have a contract or other arrangement to do work or services personally for a reward. The contract does not have to be written;
– their reward is for money or a benefit in kind eg the promise of a contract or future work;
– they only have a limited right to send someone else to do the work (‘subcontract’);
– – they have to turn up for work even if they don’t want to;
– their employer has to have work for them to do as long as the contract or arrangement lasts;
– they are not doing the work as part of their own limited company in an arrangement where the ‘employer’ is actually a customer or client
Charities voluntary organisations associated bodies and statutory bodies do not have to pay volunteers. However employers cannot avoid paying the National Minimum Wage if it is due as Sony attempted to do by saying or stating that it does not apply or by making a written agreement saying someone is not a worker or that they are a volunteer.
According to Government regulations an employer does not have to pay the National Minimum Wage if an internship only involves shadowing an employee i.e. no work is carried out by the intern and they are only observing. However this was clearly not the situation in Mr Jarvis’s case.
If you have applied for an internship with a company and you believe that you are being asked to carry out the work of an employee you may be entitled to be paid the National Minimum Wage. Please contact the specialist employment team at Michael Lewin Solicitors who will be happy to discuss your circumstances with you.
Written by Anthony Fox