Unpaid Trial Shifts: Legal considerations
Unpaid trial shifts are a contentious issue. While they can be seen as a practical way for employers to assess the suitability of potential employees, and avoid the time consuming process of commencing employment for someone who turns out to be hopeless, the overuse of unpaid trial shifts can look more like exploitation. It is estimated that the value of unpaid trial shifts worked in the UK each year runs into billions of pounds.
Last year the UK government was asked in Parliament whether it would ban unpaid trial shifts, but declined to do so, arguing that existing laws already prohibit unpaid trial shifts unless they are part of a legitimate recruitment process.
So what is the law on this issue?
Understanding Unpaid Trial Shifts
An unpaid trial shift typically involves a prospective employee carrying out tasks for a short period without pay so that their skills and suitability for a role can be assessed. These shifts can range from a few hours to over a day. While they can be useful in some circumstances, they do raise legal and ethical questions.
National Minimum Wage (NMW) Compliance
The National Minimum Wage Act 1998 mandates that all workers are entitled to be paid at least the minimum wage for the work they perform. The critical question is whether an unpaid trial shift constitutes “work.” There is no simple answer which applies in all cases, and in each case it will depend on the particular circumstances arising.
Genuine trial shift or work?
The government has published guidance on the use of unpaid trial shifts and the factors which will be relevant in assessing the difference between a legitimate trial shift, and unreasonable abuse of the trial shift option. These include the following:
- Is the trial shift genuinely part of the recruitment process, a tool to decide who should be offered employment?
- Is the length of the trial shift reasonable to allow the employer to assess suitability. It will only be in exceptional cases that a trial of more than one day would be reasonable
- Is the employee being observed/watched by a manager in order to assess their skills and suitability and make a recruitment decision?
- The nature of the tasks – are these the same as the tasks the worker would be carrying out if employed by the company?
- To what extent do the shifts provide a value to the company beyond the stated purpose of assessing suitability for employment?
- Does it appear that the business is using trial shifts for other purposes, for example to reduce its overall wage bill?
It must be clear that the purpose of the trial shift is to observe and assess the individual’s skills with a view to potentially offering employment, rather than the employer getting the benefit of free labour.
If, having considered these issues, it is a genuine trial shift to assess suitability, then there is no obligation to pay NMW. However, if the trial shift is not reasonable, and the individual is actually working, NMW will be payable.
Failure to pay NMW could be addressed by HMRC’s NMW enforcement team, or by the individual raising a claim.
There are also potential reputational risks if a business is seen to be unreasonably benefiting from free labour, from workers who may be predominantly young.
How to deal with unpaid trial shifts
Clarity and Agreement
Before commencing an unpaid trial shift, clear communication is essential. Employers should outline the duration, purpose, and nature of the shift in writing, setting out how the individual will be monitored/assessed, and ensuring the candidate understands and agrees to these terms. This documentation can provide clarity and protect both parties in case of disputes.
Reasonable Duration
As noted above there is no statutory definition of a “reasonable” duration for an unpaid trial shift but a few hours to a single day will be considered reasonable for most roles.
Minimal Productive Work
Focus the trial shift on assessment rather than productive work that benefits the business and which would otherwise be carried out by employees.
Avoid the risk of exploitation – keep records
Unpaid trial shifts pose a risk of exploitation, particularly in industries with high turnover rates and low-skilled positions, perhaps those which particularly attract candidates of a particular age, gender, or ethnic background. Employers must be vigilant in avoiding practices that could be construed as taking advantage of job seekers. Repeated use of unpaid trial shifts without subsequent employment offers can indicate exploitation. Employers should keep records showing how trial shifts operate, how many translate into job offers, and why in certain cases offers were not made.
Feedback and Transparency
Offer constructive feedback to the candidate after the trial shift and be transparent about the likelihood of employment following the trial.
Conclusion
Unpaid trial shifts are a contentious issue, with strong views often expressed as to the morality of anyone working for free. Employment law does not adopt an absolute prohibition on unpaid trials, but emphasises the need for a trial shift to be a genuine assessment. Employers who stray into exploitation of job seekers may find HMRC enforcement action being taken.
If you require further guidance on this issue, or any other employment law matters, our team of experienced employment lawyers is here to assist.
This update contains general information only and does not constitute legal or other professional advice.
Caroline Carr, Partner & Accredited Specialist in Employment Law: cac@bto.co.uk / 0141 221 8012 / Connect with Caroline on LinkedIn
Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012 / Connect with Douglas on LinkedIn
