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Guest Post: Interns and the National Minimum Wage

Guest Post:  Interns and the National Minimum Wage
BY Inspiring Interns

Interns have been in the media a lot over the last 12 months. Some people see them as a way for businesses to take advantage others, the government included, see them as a way for young people to gain valuable on the job experience. Where you stand is not what this article is interested in. We have come to discuss how an internship works with the National Minimum wage.

Internships have no formal standing within National Minimum Wage legislation and as such must fit within existing legal framework. The key to establishing whether an intern qualifies for the NMW is whether their role can be classified as one of a worker or as one of a volunteer. Anyone can complete a volunteer internship, regardless of age or qualifications.

Broadly, a worker will have a fixed list of duties and responsibilities and will have set hours. A volunteer has no form of contract (written or implied) and there is no obligation on them to perform work.

Unpaid interns cannot be given sole responsibility for specific tasks. Set learning aims can be laid out before an internship and this alone does not constitute a contract. Unpaid interns are also free to come and go as they please.

If you are hiring an intern to complete specific tasks they should be paid NMW. If the internship period is predominantly one of training then it may be exempt from NMW.

Some key points of advice from the Business Link website:

“If you engage someone on a work shadowing or on a volunteer basis, it is recommended that you 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 you will reimburse someone for ‘out of pocket’ expenses will not, in itself, amount to an employment contract or a contract to personally perform work or services which entitles the individual to the NMW.

Individuals who are undertaking placements on a volunteer basis are not workers for NMW purposes.
…
The intention behind the unpaid activity (whether to benefit the environment, other groups, or the individual personally) is irrelevant. An individual can volunteer to do work for you or your organisation for non-altruistic reasons, eg someone may volunteer to do work to gain experience or in the hope that they will get a good reference.”

As you can see the focus is on getting work experience. Any intern undertaking a position at a company should bear this in mind. If you feel that the company you are interning at is treating you like a fully paid employee then speak up. You are there to gain work experience not as an unpaid worker.

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N.B. This is a guest post on behalf of inspiring interns an internships agency. This article does not constitute legal advice and is only provided as a general guide to internships and the National Minimum Wage. Inspiring Interns are not liable for any actions taken as a result of this document.

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The Last Supper…

I’ll stop the dreadful puns now…

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Back soon… been on the moon

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Without the Convention on Human Rights – our human rights depend on what our government says they are

“You must not lose faith in humanity. Humanity is an ocean; if a few drops of the ocean are dirty, the ocean does not become dirty.”

-Mohandas Gandhi

Following the horrors of World War II, Sir Winston Churchill inspired,  and British MP and lawyer Sir David Maxwell-Fyfe led,  the establishment of the European Convention on Human Rights under the auspices of The Council of Europe (not to be confused with the European Union)  – a convention designed to ensure that no signatory state within post-war Europe would ever again be able to violate the basic fundamental freedoms and human rights of their citizens.  The Convention came into force in September 1953.

The Convention established The European Court of Human Rights. The Convention is now part of British law by virtue of The Human Rights Act 1998.

I start with the proposition that without the Convention on Human Rights,  our human rights would depend on  what  government and, in particular,  the remit of The Home Office, says they are – without international scrutiny. The potential abuse, I accept, may be more theoretical than real in our more enlightened 21st century age – but our past has not always been liberal or glorious in terms of the rights of our peoples.  Even a cursory knowledge of our history provides sufficient evidence to support this latter observation.

My second proposition is, perhaps, more controversial to some:  That we cannot trust government – or British judges constrained by British Law ( I use the term advisedly because The Human Rights Act applies throughout The United Kingdom)  because they have to apply  laws enacted by Parliament which they may find distasteful in personal belief terms –   to protect our rights and that European scrutiny under the Convention acts as a brake on potential  abuse of rights by the executive.

Thirdly, I put the proposition that while Britain may well take the Convention more seriously than some of our fellow European signatories, and there is some evidence to support this,  it is a poor argument to argue that default by others absolves us from the obligation to comply with the obligations we accepted by signing the Convention.

Last night I watched Andrew Neil’s television programme on  human rights:  Rights gone wrong (still available on iPlayer at the time of writing).  To be sure, there were faults in the analysis and scope.  Many on twitter expressed frustration.  Some, frustrated by media led coverage of the exceptional cases like Abu Qatada and prisoner votes, expressed anger that ‘unelected’ European judges should have so much power.

I was going to write a detailed analysis of  Andrew Neil’s programme.  I don’t need to because Rosalind English of 1 Crown Office Row has done an excellent analysis of the programme on The UK Human Rights blog.  I urge you to (a) watch Andrew Neil’s programme if you have not seen it and (b) Read Rosalind English’s review.

To the above, I add two  sub-propositions:

(a) Magna Carta, beloved by many who are not aware that barely four clauses of Magna Carta remain enshrined in our law, does not protect our human rights.  The barons were not over concerned with the rights of the majority of the subjects of the kingdom.

(b) Parliament is sovereign and has unfettered power to enact a British Bill of Rights.  Parliament can also take us out of the Council of Europe and our obligations under the Convention.  To do so would have political consequences in terms of our membership of ‘the European Union’. A British Bill of Rights, while we continue to be signatories to the European Convention on Human Rights, would still subordinate the British Bill of Rights and our UK Supreme Court to the rule of The European Court of Human Rights.

It is important to accept the possibility that our government may well try to restrict our human rights.  Secret justice, abolition of jury trials in less serious cases, reducing access to justice by restricting legal aid for  the more vulnerable in our society, the now renamed control orders, are not figments of an Orwellian dystopia – they are a very real, planned, actuality.   It is not unreasonable to argue that a future government may well find it most convenient to enact restrictive and repressive laws which erode our rights and freedoms –  unconstrained by an external power and Rule of Law under the European Convention.

The exceptional hard cases – Abu Qatada and prisoner votes,  to quote but two examples in Andrew Neil’s programme – raise the hackles of professional shield munching beserkers in Parliament and the ire of many whipped to frenzy by the tabloids, but the great good done by the enactment of human rights laws and our obligations under The European Convention are often forgotten in the red mist of jingoism

It was Lord Bingham,  a distinguished jurist and former Lord Chief Justice, who asked the famous question, which I  paraphrase:  “What human rights  (European Convention and our Human Rights Act) would you like to dispense with?”

We have to be careful what we wish for?  Syria – free to do as it pleases to the citizens of Syria with no enforceable international sanction. Unlikely to happen in Britain, of course – but why take the risk?

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Guest Post: Human Rights – When is Kettling Justified?

Human Rights: When is Kettling Justified?
Head of Serious Injury and Negligence at Manchester based law firm Pannone, Richard Scorer examines this controversial practice of kettling.

In brief


The need for imminence or immediacy of a threat to peace as a prerequisite for kettling. The state should not lightly infringe the freedom to protest, and proper scrutiny of any decision to do so is the hallmark of a free society.
Kettling involves the containment of crowds of demonstrators within a limited area. It is a controversial police tactic and its lawfulness has been the subject of several appellate court decisions. R (on the application of Moos) v Commissioner of Police of the Metropolis [2012] EWCA Civ 12, [2012] All ER (D) 83 (Jan) is the latest decision to examine the legality of the tactic, and refines the law still further.
Starting point

The starting point for any analysis of kettling is Art 5 of the Human Rights Act 1998 (HRA 1998). This provides a right not to be deprived of liberty except in certain well-defined situations and is an absolute right. Thus, on the face of it, the containment of demonstrators will be a breach of Art 5. Hence, court decisions have focused on the exceptional circumstances in which the state will have lawful justification to employ the tactic.

Austin v Metropolitan Police Commissioner [2009] UKHL 5, [2009] 3 All ER 455 was a claim by a demonstrator who attended anti-capitalist protests in London. She challenged kettling under Art 5 and also claimed for false imprisonment.  The judge at first instance held that the containment was justified under Art 5(1)(c), as the police reasonably believed that all those within the cordon were about to commit a breach of the peace. Also, there was a policy to release anyone caught up in the protest accidentally or who needed medical attention. This decision relied upon the factual finding that the police reasonably believed that a breach of the peace was imminent.  There was no pre-planned kettle; the police were taken by surprise and had to manage what they reasonably believed could become a violent situation.  This “imminent risk” approach was essentially endorsed by the House of Lords in 2009. However, all the judges emphasised that police constraints on demonstrators could only be justified by the need to prevent serious public disorder and violence, and must be reasonable and proportionate. The need for imminence or immediacy of a threat to peace as a prerequisite for kettling had also been emphasised by the House of Lords in an earlier case in 2006 (R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary (Chief Constable of Tames Valley Police and another, interested parties) [2006] UKHL 55, [2007] 2 All ER 529).
So, kettling may be lawful in limited circumstances, but must only be done in the face of an imminent breach of the peace, must be done in good faith, must be proportionate and must be done for no longer than is reasonably necessary.
Moos refines this analysis further. In this case, the Metropolitan Police appealed successfully against a High Court decision that it had unlawfully kettled protestors at the G20 summit in London. There had been two associated demonstrations. One was disorderly to the point of serious violence, the other was peaceful. The police kettled both demonstrations, using barricades to prevent protestors from leaving. Two participants in the peaceful demonstration sought judicial review of the police decision.
Following Laporte, the High Court held that the police had not reasonably apprehended an imminent breach of the peace in relation to the peaceful demonstration and so their action was a breach of Art 5. However, the the Court of Appeal concluded that there was no valid basis for finding that the police’s apprehension had been unreasonable, and therefore the kettling of the peaceful demonstration was lawful. Of course, from a practitioner’s perspective, what the police knew and reasonably believed at the time of the decision to kettle may only become apparent on disclosure, so to that extent Moos arguably makes kettling claims more difficult. Nevertheless, Moos falls squarely within the basic principles set out by the courts in other cases. Peaceful demonstrators were kettled but this was because the police reasonably believed that they would be joined by violent protestors from another demonstration, so the tactic was lawful to prevent an imminent breach of the peace.
Striking feature


A striking feature of Moos is the care with which the actions of the police were scrutinised by the Court of Appeal: nearly 100 paragraphs of close examination of the decisions made on the day by Chief Superintendant Johnson, the officer in overall charge of the operation. Some would say that nitpicking by lawyers makes effective policing very difficult. A better view is that the state should not lightly infringe the freedom to protest, and that proper scrutiny of any decision to do so is the hallmark of a free society. Certainly, the case reinforces that since HRA 1998, the actions of the state will be closely examined by the courts to assess reasonableness and proportionality. It is difficult to imagine this kind of case in a pre-HRA 1998 world.

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#WithoutPrejudice podcast 22: FREE SPEECH

Welcome to Without Prejudice. Joining regulars Carl Gardner and David Allen Green: The writer and journalist Nick Cohen and former prospective Tory candidate for Parliament and policymaker Joanne Cash.

Tonight’s topic is Free Speech and how privacy and libel law may impact on this cherished right.

Listen to the podcast

(Depending on your broadband speed and browser it may take a few moments to load)

Nick Cohen’s excellent book You can’t read this book formed the basis for our discussion and I have no hesitation in encouraging you to read it.  It is available on Amazon – a fascinating discussion for lawyers and others interested in free speech.

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I’d like to thank Lawtel, Westlaw,  Cassons For Counsel, City University Law School,  David Phillips & Partners Solicitors, Inksters Solicitors,  Iken, LBC Wise Counsel, Carrs Solicitors,  JMW Solicitors – Manchester, Pannone and Cellmark for sponsoring the podcast  – and the free student materials on Insite Law – appreciated.

In association with The Lawyer

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Law Review will be a regular feature weekly from this week

After my ‘pilot’ Law Review (Part 1 | Part II ) two weeks or so ago (which seemed to be of interest to readers) I will be publishing a weekly review each week going forward in roughly the same format – publishing Thursday & Fridays.

I will also be stepping up the number of my own lawcasts covering the legal landscape and #WithoutPrejudice podcasts are now weekly during the legal terms.

And… West London Man has returned…

Claim Compensation

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Guest post from Forbes Solicitors: Trust me, I am a Lawyer

Trust me, I am a Lawyer
By David Mayor at  Forbes Solicitors

I cannot be the only one getting pretty sick of hearing about compensation culture, increasing motor insurance premiums caused by greedy Solicitors in “grubby offices”, and the fact that society as we know it is sagging to its collective knees under the weight of personal injury claims.

I cannot help thinking that it is about time we got a grip.  In and amongst the arguing, back-stabbing, and high-horseness, everybody seems to have forgotten what a Solicitor actually does.

The Cambridge dictionary describes a Solicitor as “a type of lawyer in Britain and Australia who is trained to prepare cases and give advice on legal subjects and can represent people in lower courts”.  A lawyer is “someone whose job is to give advice to people about the law and speak for them in court”.

The fundamental principal of both definitions is that the law has to have already been made in order for advice to have been given.  Sure, there are occasions when a case will unexpectedly end up in the Supreme Court and change a thread of common law forever, but on an everyday basis we as Solicitors take instructions from client, tell them what the law is, and advise on their options.  It has always been like that and it always will be.

I should take exception to the plethora of articles blaming me, as a personal injury lawyer, for causing accidents, increasing claims, and making everybody’s insurance premiums rise, but I do not.  The simple reason for that is that all of the accusations are borne out of ignorance, both of the law and of what a lawyer does.

Let me tell you what I do.  I talk to a client and he tells me he was in an accident in which somebdoy drove in to the back of his car.  It was the other driver’s fault, he was busy on his phone ranting about his insurance premium.  Client says he went to hospital, was diagnosed with “whiplash”, and that it may take several weeks or months to heal.  He asks what he can do.  I reply that the law of negligence allows him to seek damages for his losses.  He would like to go ahead.  I tell him that the Government removed Legal Aid for personal injury work, so he can either pay me for the work I do or he can take advantage of the Government’s alternative to Legal Aid, the Conditional Fee Agreement.  He asks what that is, and I tell him.  He likes the sound of that, and as a conscientious Solicitor who wants to do the best for my client I agree it is a good option.  The case falls within the remit of the MoJ portal scheme and I start the case.  Liability is accepted, we get a medical report without any medical records (because the Government says I am not allowed to unless the expert really needs them) and I send it to the other side.  I make the first offer, because the Government says I have to, and the other side counter, until we have an agreement.  Client gets his damages, untouched, and I get paid a set fee  based upon what the Government has told me I am supposed to get paid (after, I might add, a great deal of consultation with the ABI, APIL, Law Society, and various other interested bodies).

At what point did I make the client run a case?  I did not even know him before he first telephoned me and I certainly did not see the accident occur.  I do not know whether it did actually happen.  I do not know whether he was injured, nor whether he did go to hospital, because I wasn’t there.  I don’t know how long he will be injured for, because I am not a doctor and I do not know how soft tissues respond to strain.  I have been in two accidents myself and I did not suffer any injuries, so I did not claim, but I am open to the possibility that somebody could be injured in that way.  Who am I to dispute what an expert says?  I haven’t lied, cheated, forced a claim, exaggerated injuries, made them up completely, and if my client has I don’t even know about it.

Here is my plea to the Government, and to the people of Britain.  I don’t ask you to like me.  I understand that you hope to never set eyes on me, because I know that if you do something has gone wrong.  But I do ask you to take the time to understand what a lawyer does.  Once you have accepted that I do not make the law, I just administer it, you can focus your attention on the real villains who do actually create the law.  What you do with that information is up to you….

David Mayor  is a Personal Injury Solicitor at Forbes Solicitors.

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West London Man (26): THE ADVENTURE OF THE FINAL PROBLEM

When last we saw George, he had been detained by American authorities at La Guardia Airport, initially for a rather poor diamond-smuggling effort. Subsequently he was implicated in the various crimes committed by disgraced financier Bernard Madoff…..

Listen to the audio version (14mins 43s)

Download the script

The Memoirs of Sherlock Holmes

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Episodes 1-25 may be found here

(West London Man 26 was written and produced by US lawyer and blogger  Colin Samuels and Charon QC.  Colin Samuels took the parts of Hank ‘Perry’ Mason and Madoff.  Charon took the part of The Narrator and George.)

I am not at liberty to explain if George survived his encounter with Bernard Madoff at The Reichenbach Falls… you will have to listen right to the end of the audio version to find out…

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My thanks to Cellmark for encouraging  George’s return….

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West London Man returns… after a trip to The Reichenbach Falls

Episode 26 is being recorded this Sunday…and George will return…after a period of time following his escape at La Guardia airport, USA….

 

(You may find the audio versions are a bit surreal…. )

West London Man (25) : The La Guardia Archipelago
Text Version | Audio Version

West London Man (24) : Diamonds are not forever
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West London Man (23) : Half baked Alaska?
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West London Man (22) : It is crunch time
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West London Man (21) : Upwardly beautiful and officialdom
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West London Man (20) : A trip to Sainsbury’s
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West London Man (19) : A short holiday in Padstow, Cornwall
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West London Man (18) : Der Peitsche
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West London Man (17) : Jolly Snorting Weather….
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West London Man (16): “I busted a mirror and got seven years bad luck, but my lawyer thinks he can get me five.
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West London Man (15): 15 – love to George…
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West London Man (14): Royal Ascot – First Day
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West London Man (13): Friday 13th…
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West London Man (12): Panic buying
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West London Man (11): Biscuits
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West London Man (10): Caroline talks to a friend….
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West London Man (9): Short suits and other matters…
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West London Man (8): Legal advice…
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West London Man (7): Pre-dinner….
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West London Man (6): At home…
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West London Man (5): To Lords for a spot of cricket…
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West London Man (4): A bit of gazundering…
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West London Man (3): Talks Stagflation….
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West London Man (2): A trip to Lords is coming up…
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West London Man (1): With the first hot weekend of summer…
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My thanks to Cellmark for encouraging  George’s return….

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#WithoutPrejudice 21: Civil disobedience and the rule of law – Sumption v Sedley – Leveson – Abolition of rank of QC

Did the News of the World seek to undermine a murder investigation? This astonishing issue is but one of the topics being discussed tonight.  We’ll also be looking at the latest developments in Leveson, the issue of Civil disobedience and the Rule of law,  the Sedley v Sumption debate and finally,  whether the rank of Queen’s Counsel should be abolished.
On the panel tonight – Gary Slapper, Director of New York University in London,  former government lawyer Carl Gardner, author of the Head of Legal Blog and David Allen Green, who practises as a solicitor and writes for The New Statesman, The Lawyer and his own Jack of Kent blog.

Listen to the podcast |Subscribe through iTunes.

Useful reading:

On Sedley v Sumption, here’s Sumption’s FA Mann lecture from last year:

Sedley’s LRB article in response

Whigs and Hunters.  E.P. Thompson

Gaby Hinsliff: Shame works on bankers, MPs and tabloids, however immune they seem

David Allen Green: Did the News of the World seek to undermine a murder investigation?

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In association with The Lawyer

I’d like to thank Lawtel, Westlaw,  Cassons For Counsel, City University Law School,  David Phillips & Partners Solicitors, Inksters Solicitors,  Iken, LBC Wise Counsel, Carrs Solicitors,  JMW Solicitors – Manchester, Pannone and Cellmark for sponsoring the podcast  – and the free student materials on Insite Law – appreciated.

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