The last few years have seen high profile reports of brands and retailers such as Arcadia and Alexander McQueen facing criticism of their use of interns. Internships allow individuals to gain experience and insight and a business to benefit from additional resource and source talented individuals in what has been regarded as a risk-free way.
Blurred distinctions between interns, work placements and volunteers, means businesses must ensure the arrangements which they have in practice do not fall foul (sometimes inadvertently) of legal obligations.
What rights do Interns have?
The fundamental consideration is whether individuals appointed for short term internships are employees of the business, workers or volunteers. The first two terms have a clear meaning in law:
- An employee is an individual who works under a contract of employment, is subject to significant control and where there is mutuality of obligation: that work will be provided and that the individual will undertake that work.
- A worker, although not employed under a contract of employment, will have a contract in place under which they provide their services personally.
- A volunteer by contrast is much harder to define and occupies a greyer area. A volunteer has no obligation to be available and often, is not working under any formal arrangement or contract; it is more in the nature of “an understanding”.
- In many cases because of the protections which an organisation will want to have in place and the assurance that projects and work will be undertaken and completed by an individual, having an individual in place as a volunteer will not be satisfactory.
Greater control can be put in place in the case of an employee and a worker and particularly in the fashion sector, very specific obligations imposed under a contract which should be in writing, dealing with issues, such as confidentiality, confidential designs, marketing plans and protection of the organisations intellectual property.
In practice, an organisation needs to worry less about whether such individuals are employees because they will not gain unfair dismissal rights unless they stay employed for 2 years, thus giving relative freedom to terminate the arrangement, as long as it is not discriminatory or in some other way unlawful for example:
- because the individual has “blown the whistle”; or
- made a protected disclosure, about some irregularity or legal infringement; and
- raised health and safety complaints.
Just be aware that individuals can acquire 2 years over periods of intermittent work, if they are regularly returning – perhaps during busy seasons when it could be said that there is an expectation and an understanding that they will stop working temporarily.
A worker will have certain minimum entitlement, including to:
- The national minimum wage and from next year, the living wage;
- To holidays under the Working Time Regulations – organisations must also comply with the maximum limits around working hours;
- Health and safety rights; and
- data protection rights;
Whistleblowing and Discrimination protection
In the discrimination field there are potentially greater risks: an organisation may be liable for the acts of discrimination which an employee or worker carries out whilst working with or for the fashion house. In addition, employees, workers and some volunteers, will have protection against discrimination and harassment – they should not be singled out, penalised, dismissed or subjected to offensive or unwanted behaviour on grounds of race, disability, sex, sexual orientation, their pregnancy, religion or belief and indeed age. Given the profile of most interns, circumstances do arise where age discrimination complaints are brought: sometimes where this might embarrass or highlight an individual’s youth – comments such as being “wet behind the ears”, which an individual well may find embarrassing, is a good example.
Whistleblowing rights also extend to all, regardless of employment status.
The best advice is for the organisation to ensure that the basis upon which the individual is appointed is made clear, that it is alert to the minimum rights and entitlement which these individuals have and protect the organisations’ reputation and that it’s commercial and business interests.