The Department for Business, Innovation & Skills has recently published new guidance to businesses on the often confusing subject of whether the national minimum wage (NMW) is payable to those undertaking work experience.
The term ‘work experience’ can relate to a specified period of time which a person spends with an organisation, during which he or she has an opportunity to learn directly about working life and the working environment. Work experience is synonymous with the terms ‘placement’ or ‘internship’; however, the term ‘intern’ has no legal status under NMW law.
Entitlement to the NMW is not based on what the work is called, eg placement or internship, the description of the work, eg unpaid or expenses only, or the profession or sector. It depends on whether the agreement or arrangement that a person has with an organisation makes him or her a ‘worker’ which has a legal definition under the NMW law (see the Department for Business, Innovation & Skills’ ‘national minimum wage checklist’). From an immigration law perspective, if the person is deemed to be a worker, then this will trigger the obligation on employers to carry out a right to work check under the Prevention of Illegal Working legislation prior to allowing the person to commence his or her work experience. Employers can be liable for payment of a civil penalty if they are found to be providing work to someone without the right to work in the UK.
Organisations offering work experience opportunities should also check whether or not the person is a genuine volunteer or a ‘worker’ for NMW purposes. Note however that students undertaking work experience for no more than one year as a required part of a UK higher or further education course do not qualify for the NMW even if they are ‘workers’.
This new NMW guidance by the Department for Business, Innovation & Skills also provides further detail on: