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This can be particularly problematic where employees have unusual working practices, such as certain employees who are required to be on-call at certain times whilst living at the employer’s premises.
The national minimum wage rules can also be complicated, with different rates of pay applying to different employees (for example due to their age).
|16 to 17-year-olds||£4.00||£4.05||£4.20||£4.35|
|18 to 20-year-olds||£5.55||£5.60||£5.90||£6.15|
|21 to 24-year-olds||£6.95||£7.05||£7.38||£7.70|
|25-year-olds and above||£7.20||£7.50||£7.83||£8.21|
The term ‘work experience’ generally refers to a limited period of time that someone spends with an employer. It can give the person the opportunity to learn about working life and the working environment, the chance to shadow the employer’s employees and/or a chance to actually try certain tasks. The nature, length and arrangements for work experience vary greatly.
Work experience is sometimes referred to as a ‘placement’ or an ‘internship’. Internships are often positions requiring a higher level of qualification than other forms of work experience, where the person can gain experience for a professional career. However, the term intern has no legal status. If an employer has any interns, they will be treated in the same way as someone doing work experience for national minimum wage purposes.
Whether or not a work experience student or intern is entitled to the national minimum wage will depend on the arrangements under which they are working. Either the person will be a worker eligible for the national minimum wage, a worker who is expressly exempt from being eligible for the national minimum wage or not a worker and therefore not eligible.
The guidance has made it clear that the person’s entitlement to the national minimum wage does not depend on the person’s job title, instead, it is based on the arrangement with the employer and within the organisation itself, as well as the tasks that the person is being asked to complete.
In addition, the guidance has made it clear that a person is not automatically exempt from being paid the national minimum wage just by virtue of them being labelled a work experience student, intern or by having their work at the organisation described as a placement, internship or unpaid work.
A work experience student or intern will not be entitled to the national minimum wage if they are merely shadowing an employee of the organisation and not expected to perform any work themselves. In addition, if there is no obligation on the work experience student or intern to attend work and they will suffer no detriment if they fail to provide their services, then they will not be entitled to the national minimum wage.
However, if the work experience student or intern is actually completing proper work, are expected to attend work during specific hours and would be subjected to a detriment if they failed to do so, this a strong indication that they are likely to be considered as workers and are, therefore, entitled to receive the national minimum wage.
The new guidance comes in response to certain public criticisms of a number of organisations that were taking on interns and paying them little or no money to do substantial work for them. The guidance makes it clear that by just labelling someone as an intern an organisation can no longer avoid the obligation to pay the person the national minimum wage if they are completing actual work for the organisation.
Here is a quick checklist to help you:
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