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Rights, Responsibilities and Unpaid Internships

Posted: 24/09/2012 00:00

With youth unemployment still above 20%, and many of Britain's brightest and best-educated young people desperate for work, many are seeking unpaid internships to get the experience they need for full-time employment. Whether they should exist at all is a debate for another day. At the very least, however, unpaid interns need an enforceable set of rights, while employers need clear guidelines as to what they can require someone to do before they have pay them to do it. Unfortunately, both the Government and Parliament are failing to provide either.

W4mpjobs.org is funded by the House of Commons, and provides listings of vacancies for jobs and internships in the sphere of politics, public policy and public affairs. MPs, lobbyists, charities, NGOs and think tanks all advertise here. Here is the message that w4mp puts on all of its adverts for unpaid internships:

"The role being advertised is a voluntary one. As such, there are no set hours and responsibilities and you should be free to come and go as you wish. If the post demands set hours and/or has a specific job description you may be deemed to be a 'worker' and be covered by National Minimum Wage legislation."

So far so good, but unfortunately this claim is not backed up by either the reality of what is being advertised on the site, or by other sources. The Government's Department for Business, Innovation & Skills has published a full list of criteria that constitute a 'worker' rather than a 'volunteer'. Here, a 'worker' must be both not free to come and go AND be receiving some kind of reward. The Department's guidelines are therefore a tautology: interns are 'volunteers', and thus do not have to be paid, but only as long as they are unpaid.

Therefore while w4mp tells me in its message that I must be 'free to come and go', the Business Department is claiming that I do not have to be. So what's the legal reality? Can an employer demand certain hours of me or not?

A number of other sources blur the lines between the crucial difference between necessary and sufficient conditions. Businesslink.gov, the Government's online resource for businesses, focuses on the absence of a contract when defining a volunteer, but when it comes to the 'worker test', says that "key elements include" the reward clause and the 'free to come and go' clause. We're still no closer to determining whether one or both are required.

The Government's website for citizens, direct.gov.uk, lists three statements (no reward, free to come and go, absence of a contract), claiming that if 'most' of these are true, there is a 'strong likelihood' that I'm a volunteer. Just how vague can you get? To make matters even more confusing, its 'example situation' is of Lisa who works in a Charity Shop. As an employee of a registered charity, Lisa would be exempt from Minimum Wage legislation as a 'voluntary worker' - an entirely separate legal title.

Let's give w4mp benefit of the doubt for now, and say that an unpaid intern must be 'free to come and go'. What would this mean in reality? Why is it that the majority of unpaid internships w4mp advertises require specific hours, sometimes for up to three months?

Even if the 'free to come and go' clause were sufficient to entitle me to Minimum Wage, it would lack teeth. To have any value, it would have to mean that employers could not demand that I work full-time and refuse to hire me if I were unable to do so unpaid. Crucially, this would allow that people who would otherwise be unable to afford to complete an unpaid internship would be able to do so around a paid part-time job.

Since demonstrably this is not the case, all that 'free to come and go' could possibly mean is that an employer can't force me to make a legally-binding agreement to work certain hours, thus he or she can't chain me to my desk or take me to court if I refuse to work the hours being demanded. Since he's not paying me in the first place, this would amount to nothing.

Ultimately only a tribunal can decide if I'm a 'worker' or a 'volunteer'. Unclear guidelines make the law ineffective either as a deterrent to employers or as protection for interns. W4mp cannot wish the problem away with rules that are unenforceable by law, and that it fails to police on its own website. It is simply not the case that there are no set hours and responsibilities. Unpaid interns are not free to come and go as they please.

 

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