Are Unpaid Work Trials legal?

Unpaid work trials are common in some sectors where there is high turnover of staff (e.g. hospitality, retail) as they can be an effective way to find out if a job applicant can do the work you need doing.  However, unpaid work trials raise the tricky question of whether the applicant should be paid while they are on the ‘trial’?Unpaid work trials

Minimum wage legislation says that anyone defined as a ‘Worker’ (Employees,  Agency Workers, Casual Hours and Zero Hours contract workers) must be paid at least the national minimum/living wage (if they are above compulsory school leaving age) – you can read more here.

There is a small list of people who are excluded from this legislation, meaning they do not need to be paid the national minimum wage, who are:

  • self-employed people running their own business
  • company directors
  • volunteers or voluntary workers
  • workers on a government employment programme, such as the Work Programme
  • members of the armed forces
  • family members of the employer living in the employer’s home
  • non-family members living in the employer’s home who share in the work and leisure activities, are treated as one of the family and are not charged for meals or accommodation, for example au pairs
  • workers younger than school leaving age (usually 16)
  • higher and further education students on a work placement up to 1 year
  • workers on government pre-apprenticeships schemes
  • people on the following European Union programmes: Leonardo da Vinci, Youth in Action, Erasmus, Comenius
  • people working on a Jobcentre Plus Work trial for 6 weeks
  • share fishermen
  • prisoners
  • people living and working in a religious community.

You can read Government advice on minimum wage legislation here.

However, a myth persists that people undertaking work trials can always be unpaid! At the end of 2018 the Government issued advice to employers about when unpaid work trials can be used as part of the recruitment process, which you can read here.

In the UK Parliament in February 2019 there was a call from a number of MP’s to crackdown on the use of these trial shifts and for minimum wage laws to be tightened.  Although the Government published the December guidance they seem unwilling to do anything further at present.

The Government Guidance has this section on Unpaid Work Trial Periods:

“The views of the government set out in this guidance are not binding or determinative in any case but are intended to assist employers and individuals in identifying circumstances in which at least the minimum wage must be paid. It is for HMRC enforcement officers, and ultimately for tribunals and courts, to decide whether the minimum wage should be paid in any particular case. Employers who do not pay at least the minimum wage for work trials should consider seeking professional advice on whether this would breach NMW or other employment law.

As part of a recruitment process, an individual may be asked by a prospective employer to carry out tasks, without payment, to help the employer to decide whether the individual has the skills and qualities required for the job. Often this will be a legitimate practice, but some employers may use unpaid trial work periods to obtain work or services for which at least the minimum wage should be paid. Current law does not define a “trial work period” or state precisely when at least the minimum wage must be paid.

NMW legislation provides that an individual who is “working” for minimum wage purposes must be paid at least the minimum wage. Most workers in the UK who are over compulsory school age and who ordinarily work in the UK are entitled to be paid at least the minimum wage. An individual will generally be a “worker” if they have a contract of employment or a contract to provide work or services. There may be a contract even though there is nothing in writing. Where an employer asks an individual to carry out a “trial”, “test” or “recruitment exercise”, the individual may nevertheless be a “worker” and entitled to minimum wage.

Whether a work trial results in a contract requiring the minimum wage to be paid will depend on the circumstances of the case. There are currently no definitive rules or tests; however, a court or tribunal is, in the government’s view, likely to take account of the following factors:

  • whether a “work trial” is genuinely for recruitment purposes (if it is not, it will generally be considered to be work and the individual will be eligible to be paid the minimum wage);
  • whether the trial length exceeds the time that the employer would reasonably need to test the individual’s ability to carry out the job offered (in the government’s view an individual conducting work in a trial lasting longer than one day is likely to be entitled to the minimum wage in all but very exceptional circumstances);
  • the extent to which the individual is observed while carrying out the tasks;
  • the nature of the tasks carried out by the individual and how closely these relate to the job offered (where the tasks are different from those which the job would involve, this may indicate that the employer is not genuinely looking to test the individual’s ability, but rather to get the tasks carried out);
  • whether the tasks carried out have a value to the employer beyond testing the individual (where the tasks are carried out in a simulated rather than real environment, this will normally indicate that they do not have such a value and that the individual is not “working”);
  • whether trial periods are important (aside from recruiting) to the way the employer runs its business (for example, where trial periods are being used by the employer as a means to reduce labour costs, this is likely to indicate that the individual is “working”).

There are reports of some unpaid trial work periods extending across more than one full shift or several days. Unpaid trials of this sort of length in a real (not simulated) work environment are likely to create an entitlement to minimum wage in all but very exceptional circumstances – especially in sectors where workers are paid at or close to the minimum wage. This is because what is done by the individual would almost certainly have substantial value to the employer rather than testing the individual’s ability. This could mean that there is a contract under which the individual would be a worker entitled to the minimum wage.

However, in some cases an unpaid trial work period lasting a few hours may be reasonable and not create an entitlement to minimum wage. This is because the main purpose would likely be to test the individual, and what is done would probably have little or no other value to the employer: the substance of the arrangement would therefore concern recruitment rather than providing work. The individual would therefore probably not be entitled to the minimum wage.

A key consideration is that the longer a trial period continues, the more likely it is that it results in a contract to provide work and that the minimum wage becomes due.

Ultimately, work trials have to be assessed on a case-by-case basis by HMRC enforcement officers and where necessary by courts and tribunals, taking account of the precise detail of the arrangements, including the duration and also what the worker is being asked to do. HMRC officers consider every complaint they receive and will take enforcement action where they consider workers are being exploited under the cover of recruitment.

NMW legislation permits a very limited number of exceptions for particular schemes which permit unpaid work trials. These include the government’s Work Trial scheme, which aims to help disadvantaged benefits claimants try work in a risk-free environment and which provides a job guarantee if both the jobseeker and the employer are satisfied following the trial.

Unpaid trial work periods – example scenarios

The following hypothetical examples are intended to illustrate some of the factors outlined above and how, in the government’s view, these might be taken into account in particular circumstances. The facts of real cases will naturally be more complex. It is for HMRC enforcement officers, and ultimately for tribunals and courts, to decide whether the minimum wage should be paid in any particular case.

Example 1: Likely to be a worker entitled to minimum wage

An individual is invited to undertake a trial work period in a new bar which has just opened along with seven other members of bar staff, the majority of whom are also undertaking a trial work period. The bar has informed him and the other trial staff that they will work across shifts over a one-week period whilst management decide who is suitable to be offered a permanent role. Management do not yet know how many members of staff they are going to hire at the end of the one-week period.

This scenario is likely to entitle the individual to the minimum wage. The one-week period appears an excessive amount of time to test the skills which that person requires to perform the role. The work undertaken by him and other trial workers is clearly beneficial to the employer and cannot easily be distinguished from work undertaken by a paid member of staff. It is unclear how the trial period fits into the bar’s recruitment process given that the bar does not have a set number of positions to fill at the end of the process, but instead is still determining how many members of staff it will require.

Example 2: Likely not to be a worker entitled to minimum wage

An individual has responded to an advert in the window of a local café seeking an additional waiter to work on Saturdays. He is interviewed by the owner of the café during the week but before being offered the job, he is asked to come back on the Saturday and work for a trial period of two hours, during which the owner will keep an eye on how he interacts with customers and see how he gets on with the rest of the team, guiding him as necessary.

This scenario is unlikely to entitle the individual to the minimum wage, assuming that the advert is genuine. A period of two hours is proportionate to the job on offer and to the owner’s need to check how that person will deal with different customers and carry out other tasks. Although the working environment is real and what he does may have some other value to the owner, this is balanced by the need to observe him and the likelihood that it will take him a little time to settle in to the role. The main purpose appears to be to check that he has the ability to carry out the role.your content here.

Example 3: Likely to be a worker entitled to minimum wage

An individual has applied for a job as a warehouse operative in a supermarket warehouse. Before being considered for interview, he is asked to carry out a trial work shift of eight hours, during which he is asked to move boxes of produce from shelving to the warehouse exit, for dispatch to nearby stores. He is left to carry out this task on his own, although the warehouse foreman returns at the end of the shift to check the amount of produce that he has moved.

This scenario is likely to entitle the individual to the minimum wage. Although perhaps a test of stamina, the length of the trial appears both excessive in time and too narrow in scope to check that person’s ability to carry out the role and, especially as he is not observed, the main purpose appears to be to help the supermarket dispatch its produce from the warehouse. The fact that he is asked to carry out this task before being considered for interview may also indicate that this is not a genuine recruitment process, but rather that the supermarket’s main aim is to benefit from free labour.

Example 4: Likely not to be a worker entitled to minimum wage

An individual has applied for a position as a Biology teacher at a school and is invited to an assessment day. The assessment day involves two short interviews in the morning and a written test. In the afternoon, he and another applicant are invited to teach two real classes in the school whilst being observed by a current member of staff. He and the other applicant are scored on their teaching in the afternoon which is tallied up with previous scores from the morning assessments to determine who should be hired.

This scenario is unlikely to entitle the individual to the minimum wage. Although the teaching undertaken by that person is in a real class room environment, it is not for an excessive amount of time, but instead is for an amount of time which is proportionate to the need to test his teaching ability. There is limited benefit to the employer in the work undertaken by the individual, as the member of staff who he has covered and who would usually be teaching is instead observing and involved in the assessment process. The trial period is clearly part of the overall assessment process in an open and transparent manner.

Example 5: Likely to be a worker entitled to minimum wage

An individual has applied for a job as a trainee chef in a kitchen. No prior experience is necessary, but the job would envisage that person developing a wide range of skills and, after three years, becoming the restaurant’s deputy head chef. He is asked to attend for a trial period between 12 noon and 12 midnight one Saturday. He is told that the trial needs to be on the restaurant’s busiest day as this will provide the best test of his ability to withstand the stresses and strains of kitchen work and his appetite to work unsocial hours. During the trial he is asked to chop and carry out simple preparation of vegetables, until 8.00 pm when he is asked to load crockery into dishwashers. One of the chefs directs him and keeps an eye on his preparation of vegetables, but is not too concerned if the results are not up to scratch as they can always be used in the next day’s soup. At the end of the 12 hour trial he is invited to return for a formal interview on Monday.

This scenario is likely to entitle the individual to the minimum wage. Although the invitation to an interview appears to indicate that the recruitment is genuine and there is a degree of observation of his ability to carry out simple kitchen tasks, there is a limited relationship between the tasks that that person is asked to carry out and the much wider range of aptitudes and skills which he will need if offered the job. The length of the trial appears disproportionate and there are a number of indicators that the restaurant is using the trial period to cover what might otherwise be a labour shortage on its busiest day of the week.

Example 6: Likely not to be a worker entitled to minimum wage

An individual has applied for a job as a head chef in a kitchen. He is asked to attend an assessment day with four other applicants. The assessment day takes place in a kitchen and involves all applicants cooking a range of dishes to be tried by the interviewing panel. The dishes are all meals which are served in the restaurant, but they are used for tasting purposes only rather than being served to paying customers.

This scenario is unlikely to entitle the individual to the minimum wage. A simulated environment which is only for a short amount of time is unlikely to attract the minimum wage, as the employer will not be gaining any tangible benefit other than being able to test the applicant’s skills. The individual is not providing “work”. It will usually be clear that simulated environments are part of a recruitment process.”

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