The Philip Lee Guide to: Internships

As published on Legal Island, October 28 2021.

What is an Intern?

“Intern” does not have a defined meaning in employment law as such. Typically, an intern is someone present in the workplace primarily to observe and learn.

However, depending on the circumstances, an intern may actually carry out work – in which case employment law will have some bearing on the relationship in practice.

In what circumstances could an intern be considered an employee?

It is probably worth distinguishing broadly between the two main types of interns in practice:-

  • Interns who unequivocally are only in the workplace to observe/learn (a secondary school student, for example, who visits the workplace in the course of her studies); and
  • Someone, typically more senior, who is in the workplace to learn but also performs “services of value”.

Typically, once the “services of value” threshold is passed, the individual has the right to be treated as an employee – with all that that entails.

The logic behind this is quite straightforward: if I am benefiting from another person’s work (i.e., the “service” they perform for me has “value”), they have an entitlement to be paid (and a commensurate entitlement under all of the other pieces of protective employment legislation).

By way of contrast, a student (typically at a much earlier stage in their working life, or still in their studies) who does not contribute anything in the way of value to the employer’s business will not automatically have an entitlement to be paid or an entitlement to the protection of employment law (but see further below).

If an intern is providing services of value to me, what are the implications?

There is a significant chance that this person is an employee – and falls to be treated that way.

Among other things, the individual will have an entitlement to the minimum wage. He or she will also be able to avail of the other protections enshrined in employment law, as referred to above. They may also be able to challenge their dismissal in certain circumstances.

What are the implications if an individual provides “services of value” but I do not treat them as an employee?

In theory, such individual could initiate a claim against you – a claim for minimum wage, to take a simple example.

Has there been any litigation around this?

Yes. While the basic role is not exactly the same, the lessons learned in relation to au pairs some years ago is instructive in this regard.

In a period of a couple of years, successive au pairs initiated employment claims against their employers in circumstances where the employers denied that the au pairs had employment status. Certain of the au pair claimants had received considerably less than the minimum wage, for example; others had been denied annual leave.

Perhaps unsurprisingly, at least in retrospect, the WRC was not prepared to entertain any argument other than persons providing services of value to another are properly categorised as employees.

These decisions gave rise to some disquiet at the time, as well as fairly extensive media coverage. However, in truth, they should not really have come as much of a surprise – if somebody is working for me, and I benefit from that work, there is a very good chance that I am in an employment relationship with that other person.

Are any obligations owed to interns who are “genuine interns” – i.e., persons who do not provide services of value?

The obligation is less onerous here, for obvious reasons. That said, an intern who is genuinely described as such has certain rights.

  • They include the right to a safe place of work (health and safety legislation applies equally to persons present on the premises as it does to employees).
  • In addition, an employer will have to exercise care when processing personal data belonging to these individuals.

There are certain other (comparatively limited) legal principles that apply in respect of “genuine” interns but for the most part they do not have to be treated as employees.

Should I enter into a contract with genuine interns?

There is, for obvious reasons, no need to enter into a fully-fledged employment contract with a genuine intern (and, indeed, it might actually be dangerous to do this).

However, there are arguments for ensuring that certain aspects of an intern’s work life are regulated in a simple agreement. Among other things:-

  • There is no harm documenting the fact that the intern is not an employee (although if, in reality, an intern is treated as an employee, the fact that the contract says otherwise will not save you);
  • More importantly, it is a wise idea to impose an obligation of confidentiality on an intern – and make it clear that even though the parties are not in an employer-employee relationship, the intern must not disclose any of your confidential information to third parties.
  • The agreement could usefully state the duration of the internship and who the intern reports to while they are in the workplace – and deal with any other practical/day-to-day issues.

Are there any restrictions on the length of time an intern can work for me?

Because a genuine intern is not an employee, they will not acquire employment law rights over time (in the way in which an employee acquires unfair dismissal rights after one year of continuous service, for example).

That said, it would be unusual for a genuine internship to be measured in years – typically, in practice, a genuine intern is only in the workplace for weeks or months. An internship that lasted years would be closely scrutinised by a WRC Adjudicator in the event of a claim – because such a long internship would be so unusual.

All of that said, there is no prohibition per se on a long internship – as long as it is unquestionably the case that the individual in question is not an employee.

Can I dispense with the services of a genuine intern immediately if they are not working out?

A genuine intern, as set out above, is not an employee – meaning their presence in the workplace can be ended unilaterally at the employer’s discretion. It might be useful to include a clause to this effect in any agreement that is entered into, as set out above.

Obviously the position becomes more complicated if the “intern” is actually an employee and has acquired legal rights.

Can I set an intern’s hours?

A genuine intern, again obviously, is not an employee – so they fall outside of Working Time legislation. There is nothing to prevent an employer, either way, from identifying the hours that the intern will attend the workplace for learning purposes.

Typically an intern’s attendance hours approximately match the usual working day in the particular workplace. Where the intern is a secondary school student, however, it is likely that their attendance hours will match their school day.

Can I discipline interns?

Because a genuine intern is not an employee, they cannot automatically be the subject of an employment disciplinary process. Unless a genuine intern has agreed in advance to be the subject of the workplace’s disciplinary rules, they should not be disciplined under your procedures.

Instead, if an intern’s conduct is objectionable, you can either take them aside for a quiet word or, in extreme cases, inform them that their internship is at an end.

Can interns make protected disclosures?

At the moment, no – an intern cannot avail of the various protections available to “whistleblower” employees.

However, the Government is planning to introduce legislation later in 2021 which will amend the existing protected disclosures regime – meaning interns will have the ability to make protected disclosures once the legislation is enacted (this is not the only change that will be made to the existing law).

 

 

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