You either love them or hate them.
What’s one person’s great opportunity to gain some valuable experience is another’s exploitation of the vulnerable, needy, and naive.
Regardless of your view, this piece will look at the legal aspects of internships.
Well known internships in Ireland include the JobBridge scheme and various FAS initiatives. Both of these internship schemes are specifically excluded from the rigours of employment law in Ireland.
But the internship offered by a private business or company has no such protection. It is this type of internship that I am writing about here.
The first important thing to understand is what an internship is and what is an intern.
Well, there is no statutory definition. And the key point for an employer to consider is whether their “intern” will actually be considered to be an employee with all of the employment law rights that flows from that.
An intern is someone who is engaged in a business or profession to observe and gain experience of a particular role, business, or industry. Many internships are unpaid, many are badly paid, and many may have the payment of “expenses” (eg for travel) to the intern.
The terms and conditions of internships vary widely from business to business but for an employer one of the most important things is whether the intern could be considered to be an employee or not..
Probably the most important factor in establishing whether an intern is an employee or not is whether he/she works or merely observes-work v education as it were.
If he/she works then he/she may well be an employee and be entitled to be paid, holidays, rest breaks, and so forth.
Elsewhere on this site you can read about the tests that are used to indicate whether someone is an employee or not.
But the vital thing to know is that regardless of what the parties say, a Court or tribunal will look at the facts of each individual situation and decide whether it is a contract of service (employee) or contract for services (independent contractor).
The same sort of analysis will be used if there is a dispute with the internship.
The National Minimum Wage Act, 2000 defines a contract of employment very broadly as follows:
contract of employment” means—
(a) a contract of service or apprenticeship, or
(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for that person or a third person (whether or not the third person is a party to the contract),
whether the contract is express or implied and, if express, whether or not it is in writing;
Accordingly it is clear that even though it has not yet been tested in Ireland, an intern could well successfully claim to be entitled to be paid under this legislation, provided he/she can show that he/she was an employee.
If the intern can show that he/she was an employee, not only will he/she have the right to be paid but he will gain the full protection of various employment law legislation governing holidays, rest breaks, anti discrimination, equality of opportunity etc.
TIPS FOR TAKING ON INTERNS:
- Be fair and transparent in how you take them on. It reflects well on your company and is just the decent thing to do.
- Consider having a written agreement, setting out the terms of the internship. This document would set out the parties expectations for the internship, what sort of training and feedback will be given, whether and to what extent there will be mentoring, and so on. Most importantly, this document would state that the intern is not an employee but that the purpose of the internship is for the intern to learn about the company, industry, or specific job/role and that the intern will not be paid. However paying reasonable and necessary expenses of the internship should be considered.
- An internship should be short; the longer it is the more likely it is to involve the intern working and being considered, at least in the eyes of the law, an employee.
- There should be some thought put into how the intern is to learn and whether he will shadow existing employees in various roles in order to learn..
- Even though the intern is not an employee, it is good practice to ensure he has been given a copy of the company’s staff handbook and its most important policies and procedures. Of particular importance here would be health and safety and dignity at work..
- If the business/company is going to discharge expenses of the intern eg travel expenses these should be vouched..
Regardless of your views on internships, they can be incredibly useful for the business and the intern.
Following the tips above means that both parties know what the ground rules are and make the engagement more beneficial and meaningful for intern and business/company.
If any of the issues raised above impact you contact us.
