Work experience placements, vocational placements and internships can be particularly beneficial to students and those looking to get a start in industry as they not only provide invaluable experience in a workplace but can often lead to opportunities for permanent employment.
In such cases, there must be a clear distinction between the initial unpaid engagement and the ensuing employment relationship.
When engagements of this kind are legitimate, the engaged person obtains the primary benefit of experience in the actual workforce. They observe, learn and develop but do not perform the work of or replace actual employees. In many instances the placement is voluntary and the person is therefore not considered an employee within the business and does not have the benefit of an employment relationship which would ordinarily carry a whole range of entitlements, the most notable being the entitlement to remuneration.
There are five key questions for consideration when determining if an unpaid work engagement amounts to employment:
1. Is the reason for the engagement to give the person work experience or to require them to help with the ordinary operation of the business? If the person is doing more than simply observing or learning whilst in the workplace, it is more likely that the relationship will be considered an employment one. 2. How long do you intend the engagement to operate? A person is more likely to be an employee the longer an engagement operates. 3. Do you need the work to be done and would it normally be done by a paid employee? If the answer is yes, the person is more likely to be an employee. 4. Is the person expected to come to work and do productive activities, such as generate revenue for the business? Again, if the answer is yes, the person is more likely to be an employee. 5. Who is getting the benefit of the work? The primary beneficiary of a work placement engagement should be the engaged person – if the business is obtaining the benefit from the person’s work, they will most likely be considered an employee. Before engaging a person in work experience, a vocational placement or an internship, employers should be asking the above questions to satisfy themselves that it is a lawful engagement and not an employment relationship.
The primary purpose of the engagement should be made clear to the engaged person in writing at the outset, that is, to provide them with practical learning experience in a workplace.
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You should always seek professional advice before taking any action in relation to the matters addressed.