UK Employment Law FAQ

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by: Rhiannon Warner
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Date: Tue, 17 Jan 2012 Time: 3:19 AM
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What is the law regarding unpaid interns?
If an intern is conducting work, they are entitled to the national minimum wage. The only exemption is for "altruistic relationships", where the benefit is wholly for the intern for periods of less than two weeks according to legal advice given to the Department for Business, Innovation and Skills. This topic has created controversy for the government recently after it emerged that hundreds of MPs may be breaking legislation by using unpaid interns for periods running close to a year, according to the Guardian. It is estimated that currently "there are 450 interns; 7% are paid a wage, and 20% are paid expenses".

What if I'm told that I'm a volunteer?
There are exemptions for charities and public bodies; otherwise if you are working and not just being trained you should be paid the national minimum wage. Even if there is an agreement between you and your employer that you are a volunteer there may still be a case for you to claim wages in a court of law.

Should I make a claim?
Recent victories by interns in employment tribunals suggest that if you have worked as an intern and have not been paid you are likely to have a strong case. If you have worked and not been paid then you should seek an employment solicitor and make a claim.

What are the differences between and employee and a worker?
The difference between employees and workers is an important one because only employees can claim the following:
• Unfair dismissal
• Redundancy payments
• Notice pay
• The right to receive written reasons for dismissal
• Various family leave rights (including the right to flexible working, parental leave and paternity leave)

...so what makes an employee?
According to section 230(1) of the Employment Rights Act 1996, an employee must have a contract with the employer, they must carry out the work personally, there must be a "mutuality of obligation" between the two parties but it is the employer who has control over the work that the employee does.

What is a worker?
Typically a worker will work for a third party who contracts the worker to a company, for example in the case of Hewlett Packard Ltd v O'Murphy, Hewlett Packard used an employment agency to employ O'Murphy making O'Murphy a worker rather than an employee. The case is similarly complicated for agency workers however in some cases there can be an "implied contract"; for example in the case of Franks v Reuters where the worker was employed via an agency for six years, the tribunal ruled that Franks was indeed an employee because of an implied contract.

Workers can also be "casual workers", freelancers, or self employed workers, for example in the case of Torith Ltd v Flynn, Flynn being a joiner who worked exclusively for a building contractor as a "self employed worker", despite this contractual definition and Flynn filing his own tax returns, paid his own tax and national insurance and used his own tools, the court ruled that Flynn was a worker.

What should I look for in my contract to signify that I am an employee?
If you wish to be described as an employee, it is important not only that you do the work personally but that your contract states that you do the work personally. In the case of Express and Echo Publications Ltd v Tanton, because the contract failed to state that Tanton, (a driver for the Express) do the driving himself, Tanton was not technically, an employee.

This is a big grey area however, in the case of MacFarlane and anor v Glasgow City Council, the court ruled that although the contract stated that if MacFarlane couldn't work a replacement could be used from a register provided by the council, the court ruled that MacFarlane was indeed still an employee.

A vitally important clause to look for is mutuality of obligation, this means that it is essential for the contract to state both that the employer will find the employee work and that the employee will commit to accepting work offered by the employer. This is why it is so difficult for casual workers to gain employment rights and why employers like to employ people as casual workers.

The word control is essential to an employment contract. It can however be argued that this is sometimes implied in the case of agency workers because for example the case of Dacas v Brook Street Bureau who worked for the council at a hostel for seven years. The court ruled that despite an express clause, a contract was implied.

What if I began my job as an agency worker and then became an employee?
In the case of Stevenson v Delphi Diesel Systems Ltd, an agency worker who later became an employee argued that his time as an agency worker should be considered so that he could claim for unfair dismissal; it was ruled that this was not true because in the agency phase there was no mutuality of obligation.

Where can I go for help?
The first port of call if you have an issue with your employer should be your trade union if you have one, if you are not a member they may still be able to help you, if you are then they will likely provide you with free legal advice.

About the Author

Rhiannon Warner is a keen follower of UK law, driven by a thirst for legal knowledge and a passion for making the law work for everyone. She has bestowed her wide legal knowledge through legal sites in a number of different fields, including UK employment law and redundancy.