The distinction between internships and employment is not always clear. Two recent cases in the Netherlands tackled this issue.
Because an internship contract usually contains the same elements as an employment contract (work, authority and pay), there is a risk that an internship contract will (also) be qualified as an employment contract. This could mean that salary (or more salary) needs to be paid, and the strict rules for terminating an employment contract apply. How significant is this risk? The court in The Hague recently ruled on this in two cases.
In 2015 in HR/Logidex (ECLI:NL:HR:2015:3019), the Supreme Court indicated that internship contracts often have the characteristics of an employment contract. This is because an intern can often only gain the experience s/he needs by doing work that is comparable to the work of an ordinary employee. According to the Supreme Court, this means that depending on the circumstances of the case, there may be an employment contract in addition to the internship agreement.
In assessing whether there is (also) an employment agreement, the Supreme Court stated that the key criterion was to what extent the work of the intern is aimed at expanding his or her own knowledge and experience, with a view, in addition, to completing his or her education. If the focus of the work is on expanding that knowledge and experience, there is no employment agreement. The intention of the parties when entering into the agreement also plays a role in assessing this.
The criterion set out above were applied in two recent judgments, described below.
Case 1: no employment agreement
This case involved an intern at the SPWO foundation (a political organisation). The intern was employed by the foundation based on an internship agreement. The internship agreement stipulated that it was not an employment contract and that the position it covered was a work experience internship. In addition, a separate agreement between the intern, the foundation and the university's student advisor stated that the foundation would give the intern the opportunity to do an internship as part of his education.
The intern claimed that an employment contract existed between the parties and claimed wages (based on the wages that were customary for the work he had performed) plus statutory interest. In the alternative, the intern claimed the difference between the internship fee he had received and the statutory minimum wage.
Applied the criterion from HR Logidex, the court considered that the work performed by the intern was unmistakably undertaken in the context of his university education. This was clear, among other elements, from the agreement that the parties had entered into with each other. According to the court, the work was primarily in the interest of the intern's education. In short: the trainee agreement was not regarded as an employment contract.
The Hague District Court, 5 April 2022, ECLI:NL:RBDHA:2022:3339
Case 2: employment contract
This case concerned an intern who, as part of a training course for dental assistants, started working for a dental practice based on a fixed-term internship contract. This agreement was renewed once orally. The dental practice subsequently indicated that this agreement would end and that no employment contract would be entered into with the intern.
The intern claimed that the termination of her 'employment contract' should be annulled, that she should be allowed to continue in work, that her salary should continue to be paid and that salary arrears should be paid.
The court again followed the criterion set out in HR Logidex. It assessed whether the work was performed predominantly in the interest of the intern's education, or whether the focus of the work was on contributing to the dental practice and its objectives.
The court considered that the intern performed work independently, such as counter work and cleaning activities, and it was clear from communications between the parties that the dental practice counted on the intern to perform the daily work. In addition, the intern replaced other assistants in their absence. The intern was not just an apprentice and there was no structural form of supervision by the dental practice. Therefore, it could not be said that the work was performed predominantly in the interest of the intern's education.
The court therefore concluded that there was an employment contract between the parties. As a result, the dental practice had to pay back-wages, as well as a transitional allowance and compensation for the unlawful termination of the employment contract. In addition, the dental practice had to pay the statutory contributions for, amongst others, WW (unemployment insurance), WIA and WAO (incapacity insurance) from the beginning until the end of the period of employment.
The Hague District Court, 14 April 2022, ECLI:NL:RBDHA:2022:4119
The question of whether an internship agreement can also be regarded as an employment agreement (with all the consequences that go with that) depends to a great degree on the circumstances, as the cases described above demonstrate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.