By Khaemba Wafula

An internship, as described by the International Labour Organization on the Employment Policy Department Working Paper No. 240 of 2018, is any arrangement for the profit of work within a business or organization, the primary purpose of which is to gain experience, skills, and contacts that will assist the worker in gaining employment and or other work opportunities in the future. 

Kenya has been a member of the International Labour Organization since 1965 and must follow and incorporate laws formulated by the Organization into the Kenyan Context by virtue of Articles 2(5) and 2(6) of the Constitution of Kenya 2010. The International Labour Organization adopted the Employment Relations Recommendation in 2006. 

This article will discuss why an intern is considered an employee under Kenyan law even though the terms and conditions of an internship do not match employment terms.

What does Kenyan law say about interns being employees?

The definition of an employee under the Employment Act 2007 includes an apprentice and an indentured learner. The Industrial Training Act defines an indentured learner as 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 to acquire knowledge of a trade in which the employer is reciprocally bound to instruct that person. 

The description of an indentured learner integrates the definition of an internship as put by the Employment Policy Department Working Paper No. 240 of 2018 of the International Labour Organization. The National Employment Authority Act 2016 also includes an intern in its definition of an employee.  The National Employment Authority Act 2016 states that an internship contract is a form of a contract of service. An intern should be given a written contract, and the employer must ensure that the contract is drawn up stating particulars of employment and that the contract is consented to by the employee. A contract of service protects from employment manipulations and exploitation. The inclusion of indentured learners in the Employment Act 2007 indicates that interns are considered employees and entitled to the benefits outlined in Act. Benefits such as annual and sick leave days shall be calculated based on the internship period. For example, an intern on a six-month contract is entitled to eleven (11) days of annual leave. The number of leave days has been achieved by calculating the number of days stated by the law, twenty-one (21) days for every twelve (12) months which translates to 1.75 days per month.

Remuneration of interns.

In accordance with Working Paper No. 240 of 2018 from the ILO Employment Policy Department, the compensation for internships varies depending on whether they are paid or unpaid. The remuneration is determined by the nature of the intern’s responsibilities within the workplace. If the intern’s role primarily involves observation or simulated tasks, the employer may offer an unpaid internship. However, if the intern performs substantial work that contributes to the organisation, they should receive compensation in the form of a wage or stipend. It is important to note that certain minimal expenses, such as travel costs, may be reimbursed without affecting the unpaid status of the internship. Additionally, interns must be paid at least the minimum wage applicable to their industry.

What do the Kenyan Courts say about internships?

In the case of James Onduko v Computer For School Kenya [2014] eKLR, the Court ruled that an intern is an employee after interpreting the definition of an employee as framed in the Employment Act 2007. The defendant argued that the claimant was an intern when first hired and received no remuneration; thus, that period cannot amount to an employment arrangement. The Court clarified that an intern is considered an employee, raising an employment arrangement. 

The Court relied on the case mentioned above in the case of Mary Wanjiru Ndwiga & 913 Others v Principal Secretary, Ministry Of Health & another [2015] eKLR. The Court, in this case, expressed that those who drafted the Employment Act 2007 intended to include indentured learners in the scope of an employee whether they received remuneration or not. The Court noted that interns have a right to enjoy the rights and benefits indicated in the Employment Act 2007 because they assist in the means of production and the business development of their workplaces, just like those considered employees and enjoy rights, benefits and protection by the Employment Act 2007.

One could also argue that internship amounts to employment and interns should benefit from the provisions of the Employment Act 2007 by looking at the aspect of control and supervision that is exercised on interns by the host organisation as decided by the Court in the case of Stanley Mungai Muchai v National Oil Corporation [2012] eKLR. The Court, in this case, held that the element of control exists where an employee is subject to the command of the employer as far as his or her performance is concerned. In practice, an employee is usually subject to the employer’s right of control, supervision, and command. The greater degree of supervision and control is indicative of an employment relationship.

Conclusion

Based on the legal framework in Kenya and the judicial interpretation concerning internships, it can be affirmed that interns are considered employees and are entitled to the full rights and benefits provided under the Employment Act. Failure to comply with these regulations may result in penalties as stipulated in the Employment Act of 2007. While employers have the option to offer unpaid internships, it is crucial to acknowledge that employees provide their labour in exchange for a salary or wages, irrespective of their qualifications, age, or experience.

The actions taken by employers, such as integrating interns into their organisations, exerting control over their activities, providing necessary equipment and tools, and determining the duration of internships, all contribute to establishing an employer-employee relationship.