Employers who offer unpaid internships often feel that they are acting benevolently in giving inexperienced people a chance to learn the ropes. However, many interns have a legal right to be paid the National Minimum Wage (NMW) and, as one case showed, a failure to remunerate them accordingly can have grave consequences (Onehundredpercent Publishing Ltd v The Commissioners for HM Revenue and Customs).

The case concerned two former unpaid interns at an online publishing company who complained to HM Revenue and Customs that they had not been paid the NMW. An investigation ensued, which culminated in the company being issued with a notice of underpayment. It was directed to pay the interns a total of more than £5,000 and received a penalty of £9,207 for its failure to pay the NMW.

Challenging that outcome, the company asserted that the interns were not ‘workers’ within the meaning of the National Minimum Wage Act 1998 and were therefore not entitled to receive the NMW. It said that they were mainly engaged in shadowing experienced personnel and that tasks they performed were for their own benefit and of no benefit to the company. It contended that, had it considered them workers, it would have sacked them for their slow and under-par performance.

Rejecting the appeal, however, an Employment Tribunal noted that, by virtue of Section 28 of the Act, there is a presumption that an individual qualifies for the NMW unless proved otherwise. The interns, who were not students or volunteers, did not fall into the category of workers undergoing training or work experience who are excluded from entitlement to the NMW.

Their roles were not confined to shadowing and some of the tasks they carried out were clearly in furtherance of the company’s business. The suggestion that they provided no benefit to the company was disingenuous. There was a verbal contract between them and the company and they were expected to work to it. They could not substitute others to perform their tasks and, far from being free to come and go as they pleased, they were required to be in the office for eight hours a day.