The following glossary provides definitions of terms commonly used in relation to internships and other forms of low or no-pay ‘jobs’ in the arts. Given that many still consider internships to sit within a legal ‘grey-area’ in relation to pay (which, in our opinion, they don’t), providing such a glossary is essential.
While HMRC has, up to now, tended to focus its minimum wage enforcement work on low paying sectors where exploitation of vulnerable workers is a particular risk, and not upon unpaid internships, there are signs that this is set to change. In the 2012/13 tax year, HMRC investigated just 40 cases concerning unpaid internships. This was more than doubled just a few months into the current tax year when the Department for Business, Innovation and Skills referred over 100 organisations to HMRC for employing unpaid interns. There are also signs that employment tribunals are leaning in favour of reimbursing unpaid interns. For example, an ex-intern of Sony was awarded £4,600 in back-pay after a tribunal ruled that his unpaid internship was unlawful (source). Arts organisations should make themselves familiar with the following definitions to ensure that they keep within the law when it comes to employing interns.
Apprentice / apprenticeship
Apprenticeships are normally run as part of a formal government scheme which combines practical, on the job training with study. Apprentices work within an organisation alongside practiced staff, gaining experience while at the same time working towards a recognised qualification (such as a NVQ, BTEC or HND). In England, anyone over the age of 16 who is eligible to work and who is not in full-time education may apply for an apprenticeship. A university graduate can do an apprenticeship, however they would not be eligible for funding, meaning their employer would have to pay the training costs. There is a legal minimum wage for apprenticeships (£3.50 as of 1 October 2017) which is applicable to all 16-18 year olds, and 19 year olds in their first year. Apprentices aged 19 or over who have completed their first year must be paid at least the minimum wage rate for their age bracket (see: National Minimum Wage).
Intern / internship
There is no legal, formally recognised definition of an intern or internship. However, an internship is generally accepted to mean a temporary period of entry-level employment during which an individual gains professional experience related to a career in their chosen field. It is also commonly understood that an intern will contribute meaningful work to the organisation (as opposed to merely work-shadowing) while receiving more mentoring support than would be expected of a regular junior member of staff.
While internships can last in length anywhere from 1 – 12 months, they are most commonly 3 – 6 months in length, either full or part time. They can be carried out alongside study, but are also commonly undertaken after graduation. Internships that are formally connected to a programme of study usually include additional requirements (see: work placements).
Whether or not an intern is legally required to receive National Minimum Wage depends largely on the nature of the host organisation. If we assume that all interns are fulfilling worker status (see: worker), only charities, voluntary organisations, associated fund raising bodies and statutory bodies are permitted to offer unpaid internships. Privately operated companies are required to pay all workers and as such cannot legally offer unpaid internships.
London Living Wage
Introduced in 2005, the London Living Wage is a voluntary minimum wage scheme intended to reflect the higher cost of living in the capital. The wage is calculated to be the minimum necessary to provide a worker in London enough to provide their family with the essentials of life, including a cushion against unforeseen events. Although the wage is not binding, as of January 2018, 3853 employers have signed up to the scheme, including insurance firm Aviva and accountancy firm Deloitte. As of 6th November 2017, the London Living Wage is set at £10.20 per hour. There is also a living wage for outside of London, currently £8.75 per hour. In 2014, accountancy firm KPMG reported that over 5 million workers are paid below the living wage (source).
Introduced in April 1999, the National Minimum Wage (NMW) is the minimum pay per hour that almost all workers are entitled to by law, and increases every April. An employer must pay this rate regardless of the size of the business and contracts for payments below the NMW are not legally binding. There are different rates of NMW for different age brackets.
It is an employer’s responsibility to keep records proving that they are paying the minimum wage. If HMRC finds that an employer hasn’t been paying the correct rates, any arrears have to be paid back immediately. There will also be a penalty and offenders might be named by the government.
There are a few exceptions to NMW legislation. The following types of workers aren’t entitled to the minimum wage:
- self-employed people running their own business
- company directors
- volunteers or voluntary workers
- workers on a government employment programme, eg the Work Programme
- family members of the employer living in the employer’s home
- non-family members living in the employer’s home who share in the work and leisure activities, are treated as one of the family and aren’t charged for meals or accommodation (eg au pairs)
- workers younger than school leaving age (usually 16)
- higher and further education students on a work placement up to 1 year
- workers on government pre-apprenticeships schemes
- people on the following European Union programmes: Leonardo da Vinci, Youth in Action, Erasmus, Comenius
- people working on a JobCentre Plus Work trial for 6 weeks
- members of the armed forces
- share fishermen
- people living and working in a religious community
The term ‘traineeship’ may refer to a government scheme launched in August 2013, aimed at providing young people with an opportunity to develop the skills necessary to gain employment (including apprenticeships). Within the scheme, 16-23 year olds undertake a substantial work placement and work skills training, alongside support to improve their English and maths. Outside of this government scheme, the term traineeship is often used by employers interchangeably with the term internship. While a traineeship may indicate a more formal, structured, practical training programme (and may be endorsed or promoted by a specific industry body), as neither term is legally defined the difference can be purely a matter of semantics.
Voluntary workers are distinct from volunteers, and the term ‘voluntary worker’ is specifically defined in legislation. As with volunteers, they work for a charity, voluntary organisation, associated funding body or statutory body and receive no monetary payments (above expenses). However, unlike a volunteer, they are employed under the same terms as a worker with a contractual agreement (written, oral or implied) to personally perform work for the organisation.
Volunteers are not classified as workers, and as such are not entitled to the same employment rights (including National Minimum Wage). Volunteers can work for charities, voluntary organisations, associated fund raising bodies or statutory bodies. In a volunteering scheme, there should be no contractual obligation between the volunteer and the organisation (such as set working hours). There may be a written agreement which sets out what the volunteer can expect from the organisation, but this is not compulsory and should be phrased around expectation rather than obligation. A key difference between a volunteer and a worker is that in the case of a volunteering role, an employer is not obliged to provide work (nor is a volunteer obliged to complete it).
A volunteer may receive reimbursement for costs such as food, travel and equipment related to the volunteering role, but they must not receive any payment above this, including non-monetary rewards. If a volunteer receives any other payment or benefit (including the promise of future paid work) they may be classed as a worker from a legal standpoint. Legislation around criminal record checks when working with vulnerable people does include volunteers, as it refers to the role that a person is in rather than their employment status.
The term ‘worker’ is legally defined. Workers are entitled to National Minimum Wage and certain other employment rights, including:
- protection against unlawful deductions from wages
- the statutory minimum level of paid holiday
- the statutory minimum length of rest breaks
- not to work more than 48 hours on average per week or to opt out of this right if they choose
- protection against unlawful discrimination
- protection for ‘whistleblowing’ (reporting wrongdoing in the workplace)
- not to be treated less favourably if they work part-time
In their publication Internships: Advice to students unions and UCU members, the National Union of Students provide the following ‘test’ which is useful in determining whether or not someone fulfils ‘worker status’.
The worker test
There are a number of things that can help you determine whether someone should be classified as a worker or whether they are not and are exempt from the NMW. In most cases it is clear whether an individual is a worker or not but there are borderline cases. In Appendix A we have provided examples of the types of factors a court or tribunal would consider to help them decide whether an individual is a worker. In brief they may ask:
- Is there a contract? Either written or oral.
- Must the work be performed personally? To be a worker an individual must be obliged to do the work themselves.
- Is there mutuality of obligations? Mutuality of obligations means an obligation on the “employer” to provide work and an obligation on the individual to accept that work. For example is there any expectation in relation to terminating the job, or taking holiday.
- Is the individual self-employed under the contract? An individual who carries on a profession or business undertaking will not be a worker if the body to whom they are providing work or services is their client or customer under the contract, rather than their employer.
Usually, the term ‘work experience’ refers to a period of placement undertaken by a person of compulsory school age in order to learn about the work environment. These are most commonly undertaken in years 10 and 11 (ages 14-16) during term-time, as part of the work related learning curriculum in schools. Work experience placements are brief (one or two weeks) and are likely to be more geared towards work-shadowing than an internship or student work placement. Young people undertaking work experience are not entitled to National Minimum Wage.
The term ‘work placement’ normally describes a student undertaking a period of paid or unpaid work as a required part of their course in order to gain experience and learn about their chosen field. These may also be referred to as ‘sandwich’ or ‘industrial’ placements. Generally, a student will be required to complete credit-bearing coursework related to their placement, and the host organisation will be required to supply certain paperwork such as a review of the student’s performance. Work placements can be arranged through a university or by the student themselves. They can be full or part-time, and last anywhere in length from fifty hours to a full academic year. As long as a work placement does not exceed 12 months, there is no legal obligation for the student to be paid National Minimum Wage – although many organisations choose to pay their placement students at or above the minimum wage rate.