From time to time, organisations take individuals on, usually young people, for work experience or internships as the arrangement is sometimes referred to. In this guidance note, we explore the legal issues that you need to be aware of when providing work experience. The note assumes that the work experience is being provided to individuals over school leaving age and not as part of any full-time education placement scheme. If you are offering work experience to individuals under school leaving age or on such a placement scheme, please contact your HR Rely advisor for more information.
It is often assumed that if an individual comes to an organisation on work experience, they have no employment rights. This is not necessarily the case, and so if an organisation wants to avoid the individual acquiring employment rights, it needs to be very careful in the arrangements that it puts in place. Remember, if the individual could be said to be an employee or a worker, they will be entitled to various employment rights, e.g., a right to paid annual leave, the right to receive national minimum wage for workers and for employees, the additional rights to minimum notice, and to claim unfair dismissal to name but a few.
For the individual to be an employee, they will work under a contract of service which is an agreement, not necessarily in writing, in which they will provide work in return for pay and will be under the organisation’s direction or control. For an individual to be a worker, then again there must be a contract between them and the organisation, not necessarily in writing, in which they undertake to personally carry out work or services for the organisation.
To try and avoid an individual acquiring employee or worker status, an organisation should take steps to ensure that the four elements of a contract, i.e., offer, acceptance, consideration and intention to create legal relations, are not made out. Ultimately, whether an individual is a worker or employee will depend on the facts of the particular case, but the following are prudent measures for an organisation to take:
If the work experience individual is in fact genuinely a worker, then the following rights will apply:
If the work experience individual is a worker, they will be entitled to receive a national minimum wage. Details of the up to date national minimum wage rates can be found under the Employment Matters Pay Data section of our website.
An individual will not come within scope of the National Minimum Wage provisions if their work experience does not amount to anything more than work shadowing.
The following are unlikely to cause a work experience individual to become a worker for the purposes of the NMW:
BIS has produced a guidance document on National Minimum Wage and Work Experience.
If an organisation is required to pay NMW to a work experience individual but fails to do so, the risk is not just a claim for back pay but also the organisation could face criminal proceedings if it has deliberately not paid the NMW.
Organisations may face large numbers of applications for work experience. How an organisation deals with such applications may impact on the organisation’s reputation and so it is sensible to adopt a fair recruitment process, just as it would when recruiting employees.
Once work experience individuals have been selected, then it is advisable to provide them with a work experience engagement letter, suitably worded to demonstrate that this is a genuine work experience engagement. An example letter can be found in the recruitment section of our website.
In law, you will have various obligations towards the individual in terms of health and safety, data protection, protecting your employees from harassment from work experience individuals. For this reason, we would recommend at the start of any work experience arrangement to go through any relevant policies with the work experience individual. Similarly, the work experience individual may have access to confidential information and it is sensible to make clear at the same time that they are expected to keep confidential any information obtained about your business.
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