Partner Article

National minimum wish?

An HMRC campaign to warn employers about the national minimum wage (NMW) rules for interns is apparently to target 200 employers who have recently advertised such posts.

Whether many of them are getting it wrong is questionable, though.

Three years ago, a number of MPs and a peer were being publicly castigated by the campaign group, Intern Aware, for using unpaid interns, and more recently the HMRC enforcement teams, working for the Department for Business, Innovation and Skills, have been “helping the fashion industry to understand its obligations”. But press reports suggest that just two employers in that latest campaign were caught out, so how hard is it to get it wrong?

The ‘big picture’ message from BIS and HMRC is that interns should be paid the national minimum wage by all employers, but some of the language being used is lamentably woolly - NMW entitlement, in law, depends on the intern being classed as a ‘worker’. If someone is employed as a trainee or working a period of probation with their employer, they are entitled to be paid at least the NMW.

There are some exemptions for certain apprentices and workers on specified training courses, and there are similar rules for voluntary workers such as those in schools and hospitals, but those who choose to work anywhere else voluntarily may not be ‘workers’ anyway.

Volunteers, genuinely under no obligation to perform work or to personally provide services, are not under contract (written or oral) and do not qualify for the NMW. Some people who think they are volunteers could still be workers if the arrangements amount to a contractual relationship, and they will then normally qualify for the NMW. The difficult area for business and the HMRC NMW police is where a person volunteers to work for free to gain experience. No obligations on either side should mean no NMW entitlement, whatever trades unions and campaign groups might wish for.

The boundary is in a very grey area. Small wonder, perhaps, that only small numbers of businesses have been caught out.

This was posted in Bdaily's Members' News section by Baker Tilly .