The boundary between educational internships or work experience agreements and the employment relationship

Written on 26 May 2016

As a result of Judgement number 394/2015 handed down by Employment Court Number 28 of Madrid, the dubious line between interns and employees is again brought to light in a sector as relevant in our country as that of trade.

A Madrid Employment Court has declared the existence of an employment relationship between the company Imaginarium and its interns. The Labour Inspectorate raised a notice of infraction on the grounds that the interns were performing duties regularly carried out by the rest of the employees: (i) cleaning and organisation of the store, (ii) advising and serving customers, explaining the features of the products and their price, although not performing checkout operations.

Although you must be aware of the specific circumstances of each case in detail, at Osborne Clarke we have experience in similar cases in which the case was ultimately decided in the company´s favour. Therefore, we recommend seeking advice as of the moment in which you decide to enter into collaboration agreements with universities or competent authorities.

Firstly, it is important to be aware first hand of the content of the agreement entered into between the educational institution or entities encouraging the integration of people at risk of social and work exclusion and the company. Moreover, in these cases it is crucial to control the development of the training activity and the monitoring of said activity by the supervisors mandatorily designated by both parties.

In similar processes carried out in our office, despite that laid out by the Labour Inspectorate in the notice of infraction, the Court determined the inexistence of an employment relationship for the following reasons:

  • The existence of a collaboration agreement for the performing of integrated actions of socio-employment inclusion, with its corresponding legal protection, under which non-employment practical training linked to a previous training process or non-employment internship in order to acquire professional experience was carried out.
  • Prior notification to the Labour Inspectorate regarding the content of the internship, the place where it was carried out, a list detailing the names of the participants, the duration and timetable.
  • The signing of an annex with each of the participants in which the content of the internship, number of hours, supervisor appointed by the company (even when the supervisor was head of the establishment at the time) and the supervisor of the entity signing the agreement.
  • Although the execution of the tasks was carried out by receiving instructions from the Director of the establishment or shop assistants under their management, it also counted on the intervention of the supervisor of the collaborating entity, with whom they communicated at the start of the internship and with their presence in the workplace (although only on one occasion) and also by telephone.
  • The irrefutable accreditation that the internship students did not carry out all the functions of the rest of the employees of the company although, inevitably, some functions did coincide in order to be able to fulfil the educational purpose of the agreement.
  • The company did not replace internship students by hiring new employees after the end of the internship or agreement.

Given the above, it should be noted that was really matters is that there is a genuine learning process beyond employment, although the acquisition of practical training knowledge on the part of the student can involve carrying out functions similar to those of some of the company´s staff. It is decisive, and it should be addressed to the supervisors designated by the company, that the purpose of these agreements must be the training of the students (although the tasks may be related to customer service and store management) and not appropriating the results or fruits of their efforts.