Archive for March, 2012
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.
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.
I’ll stop the dreadful puns now…
“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.”
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?
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  EWCA Civ 12,  All ER (D) 83 (Jan) is the latest decision to examine the legality of the tactic, and refines the law still further.
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  UKHL 5,  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)  UKHL 55,  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.
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.