Project Description

Work experience is essential to break into the fashion industry, and while you may be keen to take on those looking for an opening, it’s important to understand their rights.

An individual’s rights depend on their employment status and whether they fall within one of three categories who have employment protection. Those categories are employees, workers and the self-employed. Employees have the greatest protection, including the right not to be unfairly dismissed and to a statutory redundancy payment (both generally require two years’ service); workers (which includes employees) who have the right to paid holiday and the national minimum wage; and finally all three categories have protection from discrimination. If an intern doesn’t fall into one of these categories, they don’t have employment law rights.

Determining an intern’s or a volunteer’s status is not easy. It depends on a number of factors including the contract they are engaged under (which may not be in writing), the work that they are doing, and whether they get paid. But just because you don’t have a contract, or that you call someone an intern or a volunteer doesn’t necessarily mean that they are not an employee or a worker. The law will look at the actual relationship between you.

There is a lot of media and government pressure to pay interns and one of the key legal issues for employers is whether interns and volunteers should be paid the national minimum wage (NMW). (Remember that HMRC can investigate the payment of the NMW of their own initiative, no claim has to be made. If you’re found not to have paid the NMW, HMRC can name and shame you.)

Interns and volunteers are entitled to the NMW if they are a worker and no specific exemption applies to them. Exemptions include students undertaking work placements for less than a year as part of a UK-based higher education or further education course, and those who are of school age doing work experience. But for anyone else, if they agree to carry out work under a contract, even for only a few days, they are likely to be workers.

To determine whether an intern or volunteer is a worker look at:

Any contract they are engaged under: The contact can be in writing, verbal or implied. But if there is no contract, the individual is not an employee and cannot claim discrimination.

The work they are doing: interns will not be workers if they just work shadow and don’t carry out any work. But if they carry out duties alongside other employees, they are likely to be a worker.

Payments: If you pay a daily flat-rate expenses payment or give work-related freebies, gifts or rewards to an intern or volunteer, they may be a worker. To avoid worker status, reimburse genuine expenses only.

The promise of future employment: Don’t promise employment at the end of an internship or after a period as a volunteer, this is likely to mean that the individual is a worker.

Training: You can give training to a volunteer provided it is necessary in order for them to perform their duties, improve their ability to do their work or necessary in the course of the voluntary work. Anything over this, or training provided to an intern, is likely to indicate that they are a worker.

To avoid making a worker or volunteer a work, you should:

Document the relationship: be clear that it does not create a contractual relationship between you. Use flexible language such as ‘usual’, ‘typical’ and ‘recommended’. Allow individuals to choose when to work and to refuse tasks.

Set out a how issues and problems should be raised: so you become aware of issues before they become a legal dispute.

Don’t make payments or perks that could be seen as wages: expenses should be paid against actual receipts.

Limit obligations on the volunteer or intern: to those that are necessary for example for health and safety, or to avoid discrimination.

Treat everyone fairly: this is likely to reduce your risks and any future problems.

 

By Louise Paull, Employment LawBrief at LawBite

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