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Should people be paid for volunteering, induction or work shadowing?

Posted in : Seamus Says - Employment Law Discussion on 1 June 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors

I want to deal now with volunteering and moving into contractual areas. This one has come up as shadowing and induction. Prior to commencing employment, new staff must spend time shadowing existing colleagues and attend a one-day induction session as part of their training. Should that count as working time? Therefore should it be paid?

Seamus: Yeah. This takes me back to my first job. There was a period of induction that had to happen which I wasn't paid for, which I think I'm still a bit bitter about. There is a difference in relation to training and to work and then again in relation to shadowing and induction days in terms of working time and the right to payment in relation to that.

But strictly speaking, there's no entitlement to pay when it comes to if you're doing some work shadowing or if you are engaging in induction for the job itself, and certainly a lot of the jobs now that you see out there it's almost built as a mini-trial period as well and it really is up to the person to attend the induction and take out what they can get whether if they're not entitled to payment. Some companies will pay. There's no doubt about that but there's no straight entitlement for it. And in around we see a lot of this developing recently in terms of interns and people that are coming into organisations for a week or maybe for two weeks and they're shadowing and they're trying to get some experience. Certainly, there wouldn't be any obligation on the employer to take steps to pay them.

Scott: It really comes down to what the person is doing. I haven't seen a claim in the press from an intern who says, "I should be paid," who hasn't won their case.

Seamus: Yes.

Scott: It really comes down to what they're doing. If all you're doing is shadowing and getting experience, and maybe writing up a report for your college or something like that, okay, that's a training contract. There's no requirement to pay. But if you're doing the work, if you're sitting ‘by nelly’, if you're on the checkout and you're processing the goods in order to learn, that's real work. If you go to employment tribunal and say, "Hold on. I haven't been paid. I want the national minimum wage", I think a tribunal would agree.

Seamus: Yeah. Where you are doing the work as it goes the workers entitled to paid. If you're doing the work, I mean, certainly, you need to be careful in terms of someone that comes in and maybe they are doing a bit of shadowing and maybe they start to undertake some photocopying for you or typing a database for you. If it's crossing the line into where they're actually doing work well than just shadowing you around and watching what you're doing, certainly it can fall into working time and the right to pay.

Scott: Yeah. The downside, of course, is some employers don't want anybody in and they're doing it for a friend and one of their employees says, "Look, my son or daughter needs some kind of workplace experience, can you do it?" I don't know if they're going to get paid for that because they don't want them to be paid for that. They don't preferably want them to be there, they're doing a favour. I don't know they would necessarily, in those circumstances, notwithstanding, they may be given a piece of work, be required to be paid. Nothing stops the employer doing it but I don't know that they would have such a great case.

The other thing, of course, for those periods of induction and internships and such is that quite frankly, the employee, if they were to take a claim, they would never get employed.

Seamus: Yeah. Well, that's it. There's such a deterrent there for the worker to really do anything about it because they're going to more or less spoiling their chances, at that point. It's the way that goes, unfortunately, with that one, but definitely, you have someone that's actually undertaken work and they're sitting at a desk and working through papers and things like that, I think they can establish clearly that they're doing work. They're entitled to payment.

Scott: And of course, they could wait until the end of the period and then put in the claim.

Seamus: They could do - yes.

Scott: Which is more likely.

Seamus: If they've got a job somewhere else, certainly there's not a difficulty with it.

 

This article is correct at 01/06/2018
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Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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