Monday, May 23, 2016
It’s interesting that one of the first steps that Minister Varadkar has taken in his new role as Minister for Social Protection is to announce the end of the JobBridge internship scheme.
The scheme has now been in operation for nearly 5 years and has attracted a fair amount of controversy during that time. Practically all of the opposition parties, for example, have been vociferous in their criticism of the scheme and among other things, JobBridge has been accused of abuse and exploitation of workers.
Minister Varadkar has announced that he will replace JobBridge with a scheme “more suited to the current job market” given that JobBridge has “served its purpose”. The form of the replacement scheme has obviously yet to be seen and it is likely to be of interest.
However, arguably a much more interesting issue is the status of interns generally in the workplace. The JobBridge scheme has tended to hoover up all of the attention – recent debate in this country has largely focused around the JobBridge scheme alone. It would be a mistake, though, to assume that the difficulties interns face are exclusively concerned with JobBridge.
Internships are very common across most industries. The right kind of internship will bridge the gap between theory and practice – will introduce a (usually young) worker to the world of work and assist them in either identifying the career they want to pursue or help them take the first steps in that career.
Traditionally, interns have been seen as falling outside of the normal employment relationship. That’s perhaps a consequence of the fact that although there is no legal definition of “intern” in Irish employment law, most people have an idea of what they think it means. Many secondary school and college students, for example, complete internships at some point during their time in education.
Placements of this kind are most unlikely to constitute employment – a student in either second or third-level education will probably not contribute much in the way of valuable service to an employer. Generally speaking, these placements are only for a period of a few weeks and are more designed to introduce the students to the world of work and its challenges than to secure a benefit for the employer.
The line becomes murkier, though, when you consider the status of graduates working as “interns”. In the UK, for example, there has been considerable controversy over the use of graduate interns who have completed their education. Certain sectors (including advertising, branding and journalism) are apparently notorious for a steady turnover of interns who unquestionably provide service of value but remain unpaid and without access to employment rights.
In terms of Irish law, if an individual is providing service of value to an employer, that individual is almost certainly an employee and ought to have access to the wide range of rights enshrined in law. Those rights cover virtually every aspect of the employer-employee relationship, from the right to a minimum wage to the right to 20 days paid holidays annually.
This is something that received some attention in the parties’ manifesto in the run up to the election – Fianna Fáil, for example, indicated that they intended to ban unpaid internships of more than 4 weeks and to implement legislation making it mandatory for employers to pay interns providing. That would be a fairly significant sea change in the law. Interns tend to fall between the cracks and there has been very little examination of their status and rights in the employment tribunals or in the courts to date.
It is highly likely that there are businesses all over the country that regularly make use of graduate interns and that those interns are providing services of value. It’s possible that the status quo will continue into the future but, equally, it’s possible that at some point an intern may challenge the position.
In March 2016, a successful application by an au pair to the Workplace Relations Commission resulted in an award of over €9,000. Like interns, au pairs were one of those categories of worker who might have been seen as in a class of their own.
The decision came as a rude awakening as it made it unequivocally clear that au pairs, with the requisite service, were definitely employees and were entitled to the full range of employment law rights.
There’s no doubt that an intern, with open-ended service, could mount a similar challenge and there is every reason to believe that the Workplace Relations Commission would take a similar view in those circumstances.
The lesson for employers is clear – interns of the “traditional” secondary school variety are probably very safe, as are college students learning about the workplace. Anyone else may well have employee status and have equivalent rights to your full time staff. It would be wise to tread carefully.