The unpaid internship: Know your rights

This week aspiring barrister Adam Fellows explores how a profession desperate to shrug-off the white, middle-class stereotype and encourage ‘greater diversity at the bar’ can justify an unpaid internship.

Adam Fellows

Adam Fellows

For those unsuccessful in securing pupillage or training contracts, thoughts at the end of summer turn to what can be done to bolster a person’s application. As there are so many law graduates trying to find their entry into the profession, it is common for paralegal positions to be snapped extremely quickly.

At the same time, there is a wide recognition that this is a difficult time for a lot of legal service providers, so it is understood that the pay will not reach those heady limits of some of the top paid training contracts or pupillages (though many are better than some of the latter offered at the minimum funding rate of £12,000 for a year). However, there has been an interesting rise in a more challenging type of work experience: the unpaid internship.

It is expected that the bulk of a law student’s work experience will come from mini-pupillages or vacation schemes, which are for the most part unfunded or have a certain amount of expenses paid. However, a well-known legal tweeter noted an advert for an unpaid legal internship at 4KBW, the Chambers of Mr Lawrence Power and passed it around for comment. The comments it drew were akin to disgust or weary head-shaking. A second similar advert for a similar unpaid internship at 9KBW has been spotted today (7 August 2012). The work undertaken on such an internship was more than the average mini-pupillage; both were offering a range of high calibre work including legal research, drafting legal documents, note taking in client conferences, and attending at court with Chambers members, but for no pay, or as one advert put it “salary is not a constraint” for the applicant. Some of the legal tweeters even noted that the work offered is essentially the training a first six pupil receives, but they will not be able to use that experience as such due to the BSB regulations.

Clearly these internships are aimed at those graduates who have finished all their qualification but who have yet to succeed in getting their pupillage or training contract. The duration for both internships is to be up to six months, with one of the two sets setting out working hours. It all sounds like great experience, but with nearly a quarter of BPTC applicants expecting to have debt exceeding £20,000, who can afford to work for free for six months? Moreover, are Chambers breaking the law by offering such internships?

May 2011 saw the victory of Keri Hudson against TPG web publishing, where she received a pay award from an employment tribunal worth £1,025. This was equal to five weeks’ work paid at the national minimum wage (NMW). She received this award, despite being treated by her former employer as an unpaid intern, because she was held to have reached ‘worker’ status, and so was entitled to the NMW. The NMW guide sets out the following criteria for whether someone is classified as a worker

  1. there is a contract between the intern and the employer, written or otherwise, for a monetary reward or benefit in kind;

  2. the intern has to turn up to work even if they do not wish to;

  3. there is a requirement for the employer to provide work; and

  4. the intern has to provide the services themselves.

Now it seems that the requirement of working for some known reward or benefit in kind may prevent these internships from attracting the NMW, but lawyers for the Department of Business, Innovation and Skills noted that it only expected those working for short periods where the benefit of the arrangement is wholly for the intern would be exempt from payment. Sure, they will be a great benefit to the successful applicants, but there will definitely be a benefit for the Chambers too. As the guidance says, what matters is the nature of the work done and the contract between the parties. Under the current guidelines, these internships are more likely than not to attract the NMW.

The Bar has done some excellent work on diversity in recent years. It has understood and accepted criticisms of its uniform appearance (for the most part), and there are some excellent schemes out there. One only needs to look at the excellent Pegasus Access Scheme run by the Inner Temple, which gives university students who may feel they suffer from career barriers the chance to go on a mini-pupillage with a top level set of Chambers, giving them both the experience and the boost of confidence they need for their career paths. However, work experience like these internships can really make an applicant stand out, but not remuneration means that it will be limited to those without debt and able to take it on, or those bankrolled by family members. The ethos of the Bar currently aims to show that everyone has an equal chance at a career, that it is up to the individual to achieve their best. Furthermore, the Bar Council is also a signatory to the Common Best Practice Code for High Quality Internships, which sets out the commitment to remuneration. However, with this aim being undermined from within by individual sets, it is easy to say that diversity schemes will achieve nothing but false hope. If the Bar wishes to improve its reputation for fairness and openness then it should remind its members to abide by the laws they work in everyday.

Follow Adam Fellows on Twitter @eatplaylaw