In today’s ever changing employment market, it is important to distinguish between employees and other labour relationships. New and emerging forms of ‘non-standard’ employment are coming to dominate young people’s early labour market experiences. Amongst these, internships are increasingly becoming an integral part of the school-to-work transition
The employment act defines an employee as “a person employed for wages or a salary and includes an apprentice and indentured learner;”
An internship as defined by the International Labour Organisation, Employment Policy Department Working Paper No. 240 of 2018 as “any arrangement for the profit of work within a business or organisation, a primary purpose of which is to gain experience, skills, and/or contacts that will assist the worker to gain employment and or other work opportunities in the future.”
On a narrow view, the willingness of a person to work without pay maybe treated as an indication that they are volunteering their services with no intention to enter an employment contract. But it is also possible that a contract may be inferred whenever an intern makes a commitment to undertake productive work that benefits the organisation hosting them in the return for opportunity to gain experience and enhance their employability.
In order to identify whether an intern can be termed as an employee, it is first necessary to identify the factors that are taken into consideration when the courts are looking to establish a contract of employment. The case of Christine Adot Lopeyio v Wycliffe Mwathi Pere  eKLR established the different criteria that need to be taken into consideration.
- The control test whereby a servant is a person who is subject to the command of the master as to the manner in which he or she shall do the work.
- The integration test in which the worker is subjected to the rules and procedures of the employer rather than personal command. The employee is part of the business and his or her work is primarily part of the business.
- The test of economic or business reality which takes into account whether the worker is in business on his or her own account, as an entrepreneur, or works for another person, the employer, who takes the ultimate risk of loss or chance of profit.
- Mutuality of obligation in which the parties make commitments to maintain the employment relationship over a period of time. That a contract of service entails service in return for wages, and, secondly, mutual promises for future performance. The arrangement creates a sense of stability between the parties. The challenge is that where there is absence of mutual promises for stable future performance, the worker thereby ceases to be classified as an employee as may be the case for casual workers.
The courts in the Case of Bernard Wanjohi Muriuki v Kirinyaga Water And Sanitation Company Limited & another  eKLR consolidated the criteria to form a “four – fold test and established the “The Multi-factor test combines aspects of the first two tests: it considers the power of control of the employee with regard to the means and methods of work; and the underlying economic realities of the activity or relationship.”
The courts have recognised that these tests are insufficient to establish an employment relationship and held in the case of Everret Aviation Limited V Kenya Revenue Authority (Through The Commissioner of Domestic Taxes)  Eklr which quote the “Halsbury’s Laws of England Vol I 26, 4th edition paragraph 3” as instructive:
There is no single test for determining whether a person is an employee, the test that used to be considered sufficient, that is to say the control test, can no longer be considered sufficient, especially in the case of the employment of highly skilled individuals, and is now only one of the particular factors which may assist a court or tribunal in deciding the point. The question whether the person was integrated into the enterprise or remained apart from and independent of it has been suggested as an appropriate test, but is likewise only one of the relevant factors, for the modern approach is to balance all of those factors in deciding on the overall classification of the individual. The factors relevant in a particular case may include, in addition to control and integration: the method of payment; any obligation to work only for that employer, stipulations as to hours; overtime, holidays etc; arrangements for payment of income tax and national insurance contribution; how the contract may be terminated; whether the individual may delegate work; who provides tools and equipment; and who, ultimately, bears the risk of loss and the chance of profit. In some cases the nature of the work itself may be an important consideration”.
James Onduko v Computer For School Kenya  eKLR, the court after defining what an employee is in accordance with S2 of the Employment Act ruled as follows:
An intern, being either an apprentice or indentured learner, is by definition an employee. The Claimant was therefore an employee from the time he started earning wages or salary.”
This was further reiterated in the decision in Mary Wanjiru Ndwiga & 913 Others v Principal Secretary, Ministry Of Health & another  Eklr
The drafters of the Employment Act addressed such a scenario under section 2 of the Employment Act and indeed Parliament passed it with approval when an ‘employee’ was defined to include such an intern, learner, bonded or a salaried person;
Such a definition did not stop at a person who receives ‘wages or a salary’ this is expanded to include those in apprenticeship and indentured learners. Such are persons in training, preparation or assist in the means of production or assist in the business development and earn a wage, a salary, allowance or token as they are indentured or bonded and in agreement that upon completion of such internship they full acquire full status of qualification and receive confirmation in their profession. Such is the case for all professionals in the health sector, legal sector and fiancé sectors just to list a few. Learners in apprentice and indenture are thus placed at a high responsibility to prove their worth by undertaking such duties under the tutelage of mentors or peers before the regulatory body approval and confirmation to the required status. For the role their play, such Interns such as the Petitioners were, they enjoy rights and benefits as they serve their master, employer or as the case might be.
From the foregoing it can also be said that highly skilled professionals will almost always be held to be employees irrespective of being termed as interns.
Questions with regards to an explicit Employment Contract may also arise. Under Kenyan Law, the onus to formulate a contract of employment lies on the employer. “An employer who is a party to a written contract of service shall be responsible for causing the contract to be drawn up stating particulars of employment and that the contract is consented to by the employee”
However, The case of Agnes Wanjiku &10; others v Chief Registrar of the Judiciary & another  Eklr held that “The relationship between the parties, howsoever described or defined – attachment, clerk, student clerk, secretary, casual, intern, archive clerk et al does not to me amount to a relationship of employment. This is because ordinarily, employment relationships are established by mutuality of agreement inter-parties. This incorporates the agreement of terms and conditions of service. The law, vide section 9 of the Employment Act, 2007 requires that this be in writing whereas section 10 of the Employment Act mandates the employer to reduce this into writing. However, this need not necessary be the case in real life. Courts have inferred, interpreted and discerned employment even in the absence of written contracts of employment.”
According to the ILO Employment Policy Department Working Paper No. 240 of 2018, It also depends on whether internships are paid or unpaid as well as whether internships are real productive work or limited mostly to observation or mock tasks. An internship is a paid internship if the intern receives financial compensation. This can be in the form of a wage or a stipend though not if they have a very limited range of expenses such as travel costs being reimbursed. There may be little concern with internships that involve remuneration that atleast makes the minimum wage that would otherwise apply to employees performing the same work. It’s quite likely that in this situation the interns will be treated as employees.