Understanding interns

Internships in the art sector have come under the spotlight recently. They are particularly attractive in seeming to offer entry into a highly competitive area where even short-term jobs can be difficult to come by. The concerns raised by unions and others focus on unpaid internships (or those below the minimum wage). Some see the offering of unpaid internships as a barrier to those who cannot afford to obtain experience out of their own pockets. If those unpaid interns then go on to achieve paid work, this can be seen as socially divisive. The issue raises strong feelings and we feel that lumping all internships together as being of one type, as some commentators do, does not help the debate. It is crucial to focus on the nature of the relationship between the organisation and the intern and particularly aspects such as pay (if any), the duration and the nature of any ‘duties’ rather than the label.

What are internships?

In the context of the UK job market, the term internship has no legal definition and there is no consistency in terms of its practical application. The prominence of the term is largely a consequence of an often false perception. Individuals undertaking work without pay typically believe that the expression ‘intern’ looks better on a CV than ‘volunteer’. The rationale for this is straightforward: the provenance of the word is the fiercely competitive market for prestigious corporate and political internships in the USA. In reality, however, the concept does not translate directly or meaningfully into the UK job market. A successful legal campaign mounted by the National Union of Journalists (dubbed ‘cash-back for interns’) and HMRC’s avowed commitment to take enforcement action against unlawful internship arrangements, demonstrates that there are very real legal consequences for organisations that fail to meet the minimum standards imposed by the law. For an employer to adhere to the minimum legal requirements, it must appreciate the distinction between a genuine voluntary arrangement on the one hand and, on the other, an arrangement that invokes mandatory employment law rights.

The law: a question of status

The law governing employment status is not straightforward. In very broad terms, however, UK employment law establishes a form of hierarchy within which there are three distinct categories of employment relationship; namely employees, workers and volunteers. There is a degree of overlap between and sub-division within these categories and each attracts a different standard of rights and obligations. An intern will always fall within one of these three categories: which particular category will depend entirely on the facts and circumstances of the individual case.

Employees

Employees enjoy the broadest range of rights and protections including, for example, (subject to length of service) the right not to be unfairly dismissed and the right to receive a redundancy payment. In order to attain employee status, a working relationship must have a number of essential features. There must be a contract of employment (which, importantly, may be implied). There must be an obligation on the part of the employer to provide paid work and a corresponding obligation on the part of the employee personally to undertake that work.

Workers

Workers occupy an intermediate category, which comprises of a range of relationships including, for instance, sub-contractors, temporary workers and (in some cases) casual staff. Although these relationships are typically more transient and ‘arms-length’ than the relationship between employee and employer, a worker is nevertheless subordinate to and dependent upon the organisation engaging his or her services. In recognition of this, the law confers a number of basic rights, including the right to receive the national minimum wage and the right to a prescribed amount of paid holiday and protection from discrimination.

The statutory definition of a worker is easier to satisfy than the test governing employee status. It essentially comprises two criteria. An individual must be under a personal obligation to undertake work and the person for whom the work is done must not be a client or customer of a business being run by the worker. (The second limb of the test effectively precludes the genuinely self-employed).

Volunteers

The relationship between an organisation and a volunteer is fundamentally different to the relationships described above. A volunteering arrangement in its purest sense is borne out of an interest in a particular cause or a desire to obtain work experience in an environment in which legal obligations do not crystallise. An ‘employer’ has absolutely no control over a volunteer: it cannot compel a volunteer to undertake work and cannot exercise influence through, for instance, remuneration, reward or disciplinary sanction. The limit of ‘control’ is purely to express expectations. Put simply, a volunteering arrangement, under which a volunteer agrees to undertake work, is binding in honour only and does not engage any of the employment law protections applicable to workers or employees. So what do you end up with? “If it looks like a duck and quacks like a duck then it probably is a duck” captures the essence of the legal approach. The onus is on organisations to be clear about what they are doing and why and to comply with the law.

Why no cases?

To our knowledge there are no cases in the arts of interns formally asserting their rights. This is perhaps understandable as those seeking a career in the arts are unlikely to want to rock the boat, but cases look inevitable sooner or later. The adverse publicity to an organisation of failing to comply with worker rights should not be underestimated. Clarity is everything and organisations need to be clear whether they are dealing with volunteers, workers or employees and should review existing arrangements – in particular the documentation defining the relationships.