Lawyer: Misclassifying professionals as interns risks legal challenges for employers

Desmond Odhiambo, Partner in Employment Law Practice at Cliffe Dekker Hofmeyr Kenya.

A recent court ruling on the rights of interns has sparked debate on fair labour practices in the country.

In April, the Employment and Labour Relations Court affirmed that interns should be treated as employees, prompting discussions on the legal obligations of employers in internship programmes.

Justice Bryrum Ongaya ruled that the Teachers Service Commission (TSC) violated the intern teachers' right to fair labour practice as they are qualified and possess teaching licenses.

 “The respondents have not exhibited statutory regulatory or policy arrangements that would entitle the first respondent (TSC) to employ interns. Ideally, the first respondent should employ registered teachers upon terms that are not discriminatory and to meet the optimal staffing needs in public schools,” ruled Justice Ongaya.

Desmond Odhiambo, Partner in the Employment Law Practice at Cliffe Dekker Hofmeyr (CDH) Kenya, noted that the decision highlights the need for employers to adhere to legal standards when managing interns.

The ruling follows the transition from the 8-4-4 education system to the Competency-Based Curriculum (CBC), which introduced Junior Secondary Schools (JSS).

 This change led the TSC to recruit 21,500 intern teachers for these schools and 4,000 for primary schools.

Odhiambo explained, “The contention was that appointing and recruiting duly trained, qualified, registered and certified professional teachers was discriminatory and unconstitutional.”

He added, “The court's decision aligns with Section 2 of the Employment Act, which includes apprentices and indentured learners in the definition of an 'employee.' By categorising an intern as an employee, they are entitled to the rights available to employees under the Employment Act, such as leave, housing and medical attention.”

Odhiambo clarified that the ruling did not introduce new rights but affirmed that interns are employees. It cautioned against using the intern designation to justify lower pay for individuals performing full duties.

 “The judgment confirmed that interns are indeed employees,” said Odhiambo.

 “It pointed out that using the intern designation to avoid the effects of the employment relationship and legal safeguards is not permissible.”

The decision also establishes that interns, apprentices and indentured learners are recognised as employees in the country.

Employers may face challenges balancing responsibilities for interns, particularly if they are fully trained and qualified.

“The challenge is balancing the appointment of a trained and qualified individual as an intern with the responsibilities they perform,” noted Odhiambo.

 He advised employers to avoid designating professionals as interns to prevent legal issues.

Odhiambo noted that the ruling aligns with international standards, such as the International Labour Organization’s Equal Remuneration Convention.

“It underscored that employing qualified teachers and interns unfairly was discriminatory and breached Article 27 on freedom from discrimination and equality before the law,” he said.

He said businesses may need to adjust remuneration for interns performing duties equivalent to regular employees.

“An employer who designates trained and qualified professionals as interns but hires them to render full services may be compelled to offer higher remuneration,” he said. 

He added that the ruling is likely to impact various sectors, particularly those requiring mandatory training and certification.

“While the decision applies universally, it will affect sectors employing professionals who must undergo mandatory training and certification,” he noted.

Odhiambo advised that interns who believe their rights have been violated can seek legal remedies.

“Employment is established by evidence,” he said, adding that the decision may influence future legislative changes, reinforcing the need for fairness and adherence to employment laws.