In two recent judgments, the question of whether the agreed trainee contract should in fact be regarded as an employment contract was addressed. Both students claimed to be working based on an employment contract and not an internship agreement. The judges in The Hague who handled these cases reached different decisions.
The first case concerned an administrative science student who did a six-month internship with a political party. The court ruled that the focus of the internship and the work the intern performed were unmistakably in the context of his study of Public Administration. The work was also not intended to make an (active) contribution to the realisation of the organisation’s primary objective. The intern was therefore not working on the basis of an employment contract (see for the text of the court ruling: ECLI:NL:RBDHA:2022:3339).
The other case concerned a student training to be a dental assistant who was working as an intern at a dental practice. In this case, according to the court, there was an employment contract. The student’s work could not be regarded as predominantly activities aimed at expanding her own knowledge and experience in the context of completing her training. The fact that she performed all kinds of activities independently, that the dental practice counted on the student for the daily activities and that the student also acted as a replacement for absent dental assistants, was taken into account (see for the text of the court ruling: ECLI:NL:RBDHA:2022:4119).
These two court rulings are in line with case law of the Supreme Court. In the event of an internship agreement, “learning” must be the primary objective, i.e. the activities carried out by the intern must be aimed at increasing the student’s knowledge and skills. The activities should not primarily be aimed at actually ‘making production’.
It is not only important to pay attention to the content of the internship agreement itself, but there must also be a real internship in practice. If not, the internship agreement may be seen as an employment agreement. In that case, for example, normal dismissal law applies, (minimum) wages can be claimed and social contributions have to be paid.