Wednesday, March 09, 2011

Uneconomic acts between consenting adults

Did you know that if you run a business and you put out a tender for anyone over 18 to come and do a couple of weeks work experience for you for free then it's illegal? You may be thinking "WTF?" at this. You may be thinking that in a free and open society consenting adults can choose what they want to do, be it kinky sex games or making tea for two weeks, but you'd be wrong... well wrong according to some anyway.

You see, yesterday on Twitter, the Political Editor of The Jewish Chronicle, Martin Bright posted the following to Twitter.
The link, had you chosen to follow it at the time, would have taken you to a page of Miloco recording studio that was offering "work experience" for anyone over 18 who wanted to get a feel for what goes on in such places.

Unlike many work experience placements and descriptions, this one was brutally honest about the reality of such things, as you can see from the Google cache. In other words, you'll be making cups of tea, generally helping out in the studio doing all the menial stuff that someone has to do and that you won;t be getting your hands on expensive equipment.

Sadly, such honesty about the reality of work experience that most of us will recall lovingly, was not appreciated by many a po-faced lefty. This was and is shameful exploitation and illegal because they should be paying the minimum wage dammit! After all "you have to pay people for work". So what happened next?

A letter from a solicitor bemoaning the shameful exploitation... and then the studio removes the page from their site. The thing is, is it really illegal?

Well, according to the Government's Business Link site, in order for someone to be entitled to the minimum wage they have to be a "worker" and defining them as such requires them to pass "The Worker Test".
Key elements in establishing whether someone is a worker include:
  • whether there is an obligation on the individual to perform the work and in return an obligation on you to provide the work
  • whether the individual is rewarded, such as through money or benefits in kind
When this guidance refers to a 'worker' it is referring to worker in this sense. If somebody is a worker, they will qualify for the NMW
So, let's apply the test.
  1. Is there an obligation on a person taken up a placement to actually turn up and is there an obligation for the recording studio to give them absolutely anything to do when and if they do turn up? No. Its "work experience".
  2. Is there any financial or benefit in kind being provided by the studio to those who do the placement? Errrr no.
So... put your hand up if you genuinely think that a person taking up such an opportunity can be defined under the official guidance as a worker on the basis of them choosing to do something where they are (a) under no obligation to actually do it and (b) agree to the terms that it is unpaid and they will receive no actual benefit from it from the outset.

I expect there will be some who will still put their hand up on the basis that they think it outrageous that any business should do this. However, that's a value judgment.

True, you might not like what they're doing, and frankly I think anyone choosing to take up the offer would be nuts, but it doesn't change the fact that entitlement to minimum wage is not about the "work" but about whether the person doing it qualifies as a "worker".

I guess that won't stop some people wetting their pants over what they think ought to be illegal rather than what actually is illegal.

N.B. Thanks to Quizzicalgaze for proof reading and other thoughts.

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