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IS AN INTERN AN EMPLOYEE?

While the introduction of the JobBridge scheme has led employers to consider engaging interns a lot more than before, it is important to know what the position is in relation to employer responsibility on a number of fronts even though the JobBridge initiative and the various FÁS schemes are specifically exempted from employment legislation, a private internship or work experience arrangement is not.

WHAT IS AN INTERN?

There is no statutory definition of an intern or a person availing of work experience in Irish law. Similarly, there is no single internship or work placement programme.

Typically, an intern is an individual who is engaged for a period of time to observe and gain experience in a particular business or profession. Many internships are unpaid, with provision only that the intern’s expenses will be discharged.

In the absence of any definite guidelines, the terms and conditions of internships vary considerably from business to business. However, all employers need to be aware that, depending on the circumstances of the internship and the actual nature of the work being undertaken, there is a risk that the intern may be found to be an employee. As a rule of thumb, a genuine internship will generally be for a relatively short period and the intern will be engaged mostly to “observe” rather than actually work.

DEFINITION OF “EMPLOYEE”

There is no universal definition of “employee” in Irish law. However, employment legislation commonly defines an “employee” as a person engaged under a contract of employment. A “contract of employment” is typically defined as a contract of service or apprenticeship or a contract with an employment agency to personally provide work to a third party. Such a contract can be express or implied, oral or written.

Whether or not parties have a contract of employment will depend on the facts of the situation and a third party such as a court or tribunal will always look at the actual facts of the situation.

There is an enormous volume of case law on the issue of employee status. There is no fixed test to determine where a contract of employment exists. However, from the case law, it is possible to divine that there must be:

  1. 1. Control: an employer will generally exercise a high degree of direction and control over the way in which the employee works e.g. he will supervise the work in accordance with fixed hours and conditions, providing necessary equipment etc.
  2. Mutuality of Obligation: for an employment relationship to exist, the agreement between the parties will centre around the employee using his/her skills and experience to carry out work provided by the employer in exchange for remuneration.
  3. The other terms of the arrangement are consistent with a contract of employment.

Best Practice Tips for Engaging Interns:

  • Apply a fair, transparent and non-discriminatory procedure for selecting and engaging interns.
  • Ensure you have a written agreement, setting out the terms of the internship. This document should state the parties’ expectations of the internship and set out certain basic terms around training, mentoring and feedback. While a court or tribunal will look beyond the written description parties give to their relationship, this document should confirm that the purpose of the internship is to give the intern an opportunity to learn about the business and should confirm that the intern is not an employee.
  • The period of the internship should be relatively short, preferably for just a few weeks. The longer an internship continues, the more likely it is that the intern will be doing the actual work of an employee and therefore will acquire employee status.
  • There should be a structured plan setting out what the intern will do or learn during the work placement. This should involve “shadowing” employees; an intern who primarily observes the business rather than does actual work is less likely to be found to be an employee. However, this of course needs to be balanced with the need for the intern to really learn from the experience.
  • The intern should be made aware of the company’s policies and procedures handbook that will be applicable during the work placement. For example, the intern should be made aware of the organisation’s Anti-Bullying and Harassment policies. Similarly, they should confirm that they will abide by the organisation’s requirements with respect to confidential information.
  • Where the employer agrees to discharge the intern’s expenses, this should only be done on the basis of actual verified expenses.
  • The employer should note that the provisions of the Safety, Health and Welfare at Work Act, 2005 apply to all in the workplace, and not just employees.

By following these tips and being mindful that an intern is not an employee and should not be treated as one, the internship should be a rewarding and beneficial experience for both the company and the individual.