I know it’s the last day of January but since it’s my first post of the year, let me go ahead and wish you a Happy New Year and Decade.

Introduction

The question of whether or not an intern is an employee has been asked many many times. This article contains my thoughts on the subject.

An intern is not an employee

The simple answer to the question is that an intern is not an employee and is therefore not entitled to the same rights that an employee has, neither are they bound by the obligations of an employee.

What is the definition of an employee?

According to the Employment Act, an employee is:-

“employee” means a person employed for wages or a salary and includes an apprentice and indentured learner;

Those who argue that interns are employees argue that interns are either apprentices or indentured leaners. Is this correct?

Who is an apprentice?

Other than in the dictionary, the only place you will find a definition of “apprentice” in our laws is in the Industrial Training Act (ITA). The Act was passed in 1959 at a time when most professional skills were learnt through practical training eg mechanical skills, carpentry, artisans etc.

According to Section 2 of the ITA,

“apprentice” means a person who is bound by a written contract to serve an employer for such period as the Board (The National Industrial Training Board) shall determine with a view to acquiring knowledge, including theory and practice, of a trade in which the employer is reciprocally bound to instruct that person;

Who is an indentured learner?

According to Section 2 of the ITA,

“indentured learner” means a person, other than an apprentice, who is bound by a written contract to serve an employer for a determined period of not more than two years with a view to acquiring knowledge of a trade in which the employer is reciprocally bound to instruct that person;

Other key points on the ITA

Contracts for apprenticeships and indentured learnerships have to be in a prescribed form and they have to be approved by the Director-General of the National Industrial Training Authority. Apprentices and indentured learners must also be certified as medically fit.

Based on the above definitions and provisions of the Industrial Training Act, an intern is neither an apprentice nor an indentured learner.

What has the Government done?

The government has developed an internship policy to govern interns in public service.

According to the policy, “internship” is defined as,

“A programme established to provide unemployed graduates with opportunities for hands-on training for skills acquisition to enhance future employability and fulfil the legal requirement for professional registration.”

An “intern” is defined as,

“An unemployed person with relevant qualifications who has entered into a contract with a government organization for a period of between three and twelve months with the intent of acquiring relevant work experience for registration with respective professional bodies and/or to increase chances of employability”.

According to the policy, an intern is entitled to a monthly stipend and to annual, compassionate and sick leave. Even though the government has made these provisions, in light of what I have already stated above, annual, compassionate and sick leave are not, in my view, mandatory rights. Of course, if an intern falls sick, they should get time off but not based or anchored on the Employment Act provisions on sick leave.

Has your company developed an internship policy?

It’s advisable to develop an internship policy. The policy should provide all the terms that will govern the internship. Needless to say, the general human rights e.g. non-discrimination, dignity, privacy etc. must be upheld. The expectations of the intern should be clearly spelt out. 

How long should a person be engaged as an intern?

That’s entirely up to the company or organization. An internship that goes on for more than a year is likely to lead to a conclusion that an employer is using the intern and trying to avoid the normal obligations of an employer – unless of course, the nature of the profession demands such a long internship.

How much should an intern be paid?

The minimum wage provisions do not apply to interns. They are normally paid a stipend to cater for meals and transport.

What has the Employment & Labour Relations Court said?

The general confusion and uncertainty regarding interns, apprentices and indentured learners and the place of the ITA can be seen from various legal opinions and judicial decisions on the subject. Some say interns are apprentices or indentured learners whereas others say that they are not. As far as I’m aware, there are no Court of Appeal decisions on the subject.

Conclusion

An intern is not an employee. Their terms of engagement should be clearly spelt out in their engagement letter and internship policy.

Remember, this is my opinion, it is not legal advice…

***THE END***

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for over 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. Anne cares about employers and their labour issues.


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