The Pay and Work Rights Helpline provides information and advice on a number of government enforced employment rights that are there to protect both employers and workers.
(We have highlighted sections of particular relevance to Placement UK clients)
Thank you for contacting the Pay and Work Rights Helpline.
What is work experience?
- The term ‘work experience’ generally refers to a specified period of time that an individual spends with a business – during which they have an opportunity to learn directly about working life and the working environment.
- An individual’s entitlement to the national minimum wage (NMW) will depend on whether the work experience offered makes the individual a worker for NMW purposes.
- If a caller would like to read guidance about work experience and internships themselves they can find this on the gov.uk website here https://www.gov.uk/national-minimum-wage-work-experience-and-internships
What counts as an internship?
- Work experience is sometimes referred to as a ‘placement’ or an ‘internship’. In common usage, internships are sometimes understood to be positions requiring a higher level of qualification at the outset than other forms of work experience and are associated with gaining experience for a professional career.
- However, the term ‘intern’ has no legal status under NMW law and entitlement to the NMW does not depend on what someone is called, the type of work they do, how the work is described (eg ‘unpaid’ or ‘expenses only’) or the profession or sector they work in.
- What matters is whether the agreement or arrangement they have with the employer makes them a worker for NMW purposes. The worker checklist can help to decide if that is the case.
- Some forms of work experience, including placements and internships, may be referred to as ‘unpaid work’ or ‘expenses only’, where an individual gives their services free of charge in order to develop or maintain their skills. Organisations offering such positions should check if the individual is a volunteer for NMW purposes or if an exemption applies.
- If the individual is not a genuine volunteer and is not exempt, then they must be paid at least the NMW.
- If a caller would like to read guidance about work experience and internships themselves they can find this on the gov.uk website here Exemptions within national minimum wage legislation relevant to work experience
Some individuals are not entitled to the national minimum wage (NMW) because there is a specific exemption in the National Minimum Wage Act or Regulations. The exemptions of particular relevance to work experience are:
Students working as a required part of a UK-based further or higher education course
- Work experience undertaken by students as part of UK-based higher or further education courses is exempt from the national minimum wage, where the work experience placement does not exceed one year. The exemption does not apply to students performing work that is not related to their course, eg to help finance their studies or during a gap year.
- Where at the outset it is known that the work experience will exceed one year then the worker is entitled to be paid at least national minimum wage rates for the whole of the period of the work experience (i.e. there is no ‘exemption’).
- If a period of work experience unexpectedly exceeds one year, the worker will qualify for the national minimum wage in respect of work done for an employer as part of that course from the date it is known that the one year will be exceeded.
Q.If the work experience involves more than one placement, is each placement treated separately?
- Answer: If a student is doing work experience and the placement directly relates to their college course then NMW need not be paid for 12 months regardless how many different placements a person does. However as soon as they work over the 12 month period they must be paid NMW for every hour worked.
Work Experience undertaken by Individuals of Compulsory School Age
- Individuals undertaking work experience who are of compulsory school age are not entitled to the NMW. If an individual is above compulsory school age but has stayed on in full or part-time education, they are entitled to the NMW unless they are undertaking a work placement as a required part of their studies
Participants in Government Employment Programmes
- Employers do not have to pay the NMW to people taking part in some government employment programmes intended to provide them with training, work experience or temporary work or to assist them in seeking or obtaining work. Employers should speak to whoever is responsible for arranging the programme to check whether the person is entitled to NMW.
- Individuals taking part in some government arranged employment schemes, such as subsidised employment offered by the New Deal or Flexible New Deal, are entitled to receive the NMW.
- Participants in other government schemes, including work trials of up to six weeks, are exempt from the NMW but will continue to receive government benefits.
PLEASE NOTE: The exemption for those taking part in work trials applies only to trials arranged by Government. It does not apply to any trial arrangement agreed between individuals and employers. The usual NMW rules would apply in such cases.
Participants on EU Lifelong Learning Programmes
Participants involved in the following schemes are not eligible for NMW for work done as part of that scheme:
- European Community Leonardo da Vinci programme
- Youth in Action programme
- Erasmus programme
- Comenius programme
- Individuals who are undertaking a placement that does not involve any work being performed, such as work shadowing, will not come within the national minimum wage (NMW) legislation since these individuals only observe and are not performing work.
- Before advertising a vacancy on an ‘unpaid’ or ‘expenses only’ basis, employers should check whether the person that they are planning to recruit will be classed as a worker for NMW purposes.
- Employers can use the worker checklist to help them decide if a person will be a worker for NMW purposes. Adverts which suggest illegal unpaid positions inform HMRC’s risk assessment process, and employers who are considered to be ‘at risk’ of not paying the NMW may be targeted for further investigation.
Employment contracts and other Written Agreements
- If an employer engages someone on a work shadowing or on a volunteer basis, it is recommended that they agree elements of the arrangement in writing, such as learning objectives, and then tailor their activities to these learning objectives.
- Documenting objectives for the work experience and recording that the individual will be reimbursed for ‘out of pocket’ expenses will not, in itself, amount to an employment contract which entitles the individual to the NMW.
- However, simply stating in a written agreement that an individual is not a worker or that they are a volunteer does not mean that they are so for the purposes of NMW legislation. A court or tribunal would look at the reality of the arrangements made with the individual to determine if they are eligible for the NMW.
Record keeping and health and safety
- If an employer engages someone on a work shadowing or volunteer basis it is strongly recommended that they document the arrangement that they have made with the individual and/or keep a record of any oral agreements in setting up the arrangements and any subsequent changes.
- In particular, if an individual claims that they owed arrears of the national minimum wage (NMW), the onus is on the employer to demonstrate that they are not a worker for NMW purposes and that no arrears of the NMW are owed.
- The government encourages people who accept work experience placements or internships to keep records of what they agreed with their employer. This information may be used as evidence if their entitlement to the NMW is considered at a future date, eg by a tribunal or HMRC. Note the promise of a contract or future job may amount to a benefit in kind which makes the person a worker for NMW purposes.
- Making someone doing work experience comply with a legal requirement, such as health and safety, is unlikely on its own to result in their person being classed as a worker and entitled to the NMW.
Examples of workers who are entitled to the NMW
Example 1: internship with an oral agreement
- Lucas takes up an internship at a newspaper business. He agrees orally with the editor that he will work personally for 4 days a week from 9am to 5pm and will undertake research activities as directed. He receives some payment for working the agreed hours.
- Lucas has made an oral contract with the editor and should be paid at least the NMW.
- A contract can be oral or implied as well as written.
Example 2: ‘unpaid intern’ with a promise of paid work
- Amanda applies for a position at a record company. She is told that for 3 months she will be paid ‘expenses only’ and is referred to as an ‘unpaid intern’. However, as part of her agreement with the company, it is promised that at the end of her ‘internship’ she will be taken ‘on the books’ and paid above the NMW.
- Amanda should be paid at least the NMW for the whole time she spends at the record company.
- Whether someone is a worker does not depend on what job title they are given. For example, calling someone an ‘unpaid intern’ or ‘volunteer’ does not prevent them from qualifying for the NMW if they are really a worker. The promise of paid work is a form of reward for work undertaken.
Example 3: work experience with a financial reward
- David successfully applies for a work experience position in a small graphic design company, after seeing an advert offering £50 ‘travel expenses’ for each week. He receives these ‘travel expenses’ despite walking to work.
- David should be paid at least the NMW.
- Paying a financial reward which is more than paying back genuine ‘out-of-pocket’ expenses is evidence that David is a worker for NMW purposes.
Example 4: signed agreement to ‘unpaid’ work with a reward
- Ben takes up an acting role in a short film. He signs a form agreeing to work unpaid. However he is promised a small percentage of any future profits, a DVD copy of the film and tickets to the company’s releases for the rest of the year, but no salary.
- Ben should be paid at least the NMW.
- An individual cannot sign away their rights to the NMW. Entitlement to the NMW depends on whether they are a worker. Ben isn’t a volunteer because he will get a reward for the work he does – the fact that no cash changes hands is irrelevant as benefits in kind that have a monetary value count as a reward.
Examples of workers who are not entitled to the NMW
Example 5: work experience of less than a year as part of a course
- Katerina is studying at teacher training college to become a primary school teacher. She spends 2 periods of 8 weeks working in local primary schools as part of her course.
- Katerina does not need to be paid the NMW because the work is a required part of her course and the placement at the primary school does not exceed one year.
- Students doing work experience as a required part of a UK-based further or higher education course are workers who are exempt from the NMW, as long as the total time of their placement does not exceed 1 year.
- However, in the evenings, Katerina works in a local restaurant to fund her studies. Katerina should be paid at least the NMW for her work in the restaurant. The exemption does not cover students doing work that is not part of their course.
Example 6: voluntary worker at a charity with a contract for paid expenses
- Donna takes up an internship as a charity’s events organiser. She has a contract in which she has agreed to organise certain events for the charity and attend on particular days and times – she is not paid, but travel and lunch expenses are paid back.
- Donna does not need to be paid the NMW because she is a voluntary worker.
- Voluntary workers are workers who are specifically exempt from the NMW under NMW legislation. To be exempt, they must work for a charity, voluntary organisation, associated fund raising body or statutory body and receive no monetary payments and only limited and specified expenses and benefits.
Examples of individuals who are not workers and are therefore not entitled to the NMW
Example 7: work shadowing
- Sayeed, a university student, arranges 2 weeks’ work shadowing at a local company. This is unrelated to his studies. At the company, Sayeed shadows team members in different parts of the organisation and learns about the company. His activities are limited to observing, listening and questioning. He does not receive any payments, but can claim travel expenses.
- Sayeed does not need to be paid the NMW because he is not a worker for NMW purposes.
- Individuals taking part in work shadowing are not performing work.
Example 8: volunteering with no contract
- Ryan volunteers at a museum. He has no contract with the museum. He has a regular pattern of working on Tuesdays and Thursdays 9am to 6pm. He is not obliged to turn up for work, but is asked to let the museum’s manager know if he is unable to come on his usual days. He is welcomed back after periods away. His role usually involves administrative tasks (answering the phones and taking notes of meetings in a set format), but can change from day to day, with details set out by a manager each morning. He is unpaid but receives travel and lunch expenses for the days he works.
- Ryan does not need to be paid the NMW as he is a volunteer.
- Others expecting you to turn up or generally working a regular pattern does not necessarily indicate you are a worker, unless the employer can require you to work or impose sanctions for failure to do work. An individual can be a volunteer even if they are working under the supervision or control of a manager or having to meet specific standards or guidelines.
I hope this information is useful for you.
If you require any further information regarding The National Minimum Wage, Working Time Regulations, The Conduct of Agencies, The Agricultural National Minimum Wage or The Conduct of Gangmasters then please call our helpline on 0800 917 2368 Monday-Friday 8am-8pm and Saturday 9am-1pm.
Pay and Work Rights Helpline
0800 917 2368