Are Unpaid Trial Periods Legal in the UK?

In Short

• Legal Requirement: In the UK, unpaid trial periods are legal only if they are genuinely for recruitment purposes and do not involve productive work that benefits the employer.
• Duration and Supervision: To avoid breaching minimum wage laws, trial periods should be brief (typically under a day) and closely supervised, focusing solely on assessing the candidate’s suitability.
• Risk of Non-Compliance: If a trial period exceeds a reasonable duration or involves tasks that benefit the employer, the individual may be entitled to at least the National Minimum Wage.

Tips for Businesses

When considering unpaid trial periods, ensure they are brief, supervised, and solely for assessing a candidate’s skills. Clearly communicate the purpose and expectations to the candidate beforehand. Document the trial period details and avoid assigning tasks that provide direct benefit to the business. If in doubt, compensate the candidate at least the National Minimum Wage to mitigate legal risks.

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Table of Contents

• What is a Trial Period of Work?
• Unpaid Trial Periods of Work
• Factors to Take Into Account When Offering Unpaid Trial Periods of Work
• Deciding Whether or Not You Should Pay For a Work Trial Period
• Key Takeaways
• Frequently Asked Questions

When recruiting new staff, you may decide that an application form, CV or interview is not enough. In some cases, you may want to see a candidate perform tasks they would typically carry out in the role, particularly if they lack experience. To assess their suitability, you might offer an unpaid trial period of work. While this can help you evaluate their capabilities, you may still be legally required to pay them for the trial. As there is no clear law on this issue and only general guidance, careful consideration is required. This article outlines the key guidance on unpaid trial periods of work.

What is a Trial Period of Work?

A trial period of work is sometimes known as a:

• trial shift;
• test period;
• a recruitment exercise period; or 
• a trial work period.

Unpaid Trial Periods of Work

The UK law does not contain detailed provisions clearly setting out whether you are required to pay a person for trial work. As such, work trials are a grey area. However, the government has provided guidance as to when an employer should be paying the National Minimum Wage (minimum wage) in respect of a trial period. The guidance confirms that you may require a candidate to complete a trial before offering employment.

While unpaid trial work can be a legitimate recruitment tool, it may also be used to exploit workers. To address this, the government has identified key factors to determine whether a trial period should be paid, with legality ultimately depending on the specific circumstances.

Factors to Take Into Account When Offering Unpaid Trial Periods of Work

As an employer considering an unpaid trial, you should consider some key factors. These factors will help you decide whether it is fair for you to ask for a trial shift without offering payment.

An unpaid trial shift should be only as long as you reasonably need to decide whether the potential employee can do the job. Generally speaking, it is unlikely that an unpaid trial shift should last more than one day. More than this, you should start to pay the workers a minimum wage.

Other factors may determine whether you need to pay a person carrying out a trial period of work the minimum wage. These include whether the:

• trial period of work is genuinely part of the recruitment tasks;
• the trial period lasts no longer than reasonably necessary to assess capability;
• a person on a trial period of work is being watched and assessed;
• tasks the person is being asked to do represent those of the job;
• the tasks only test the person’s skills and provide no additional value to the employer, such as simulated exercises; and
• the trial period is not used to replace or reduce your existing workforce.

Deciding Whether or Not You Should Pay For a Work Trial Period

Whether or not you should pay for a work trial period is decided case-by-case basis. This is done where necessary by HMRC or by courts and tribunals. The main point they will consider is the exact nature of the arrangement, which will include the:

• length of the trial period; and
• tasks the person is carrying out.

However, there are circumstances when the law allows unpaid trial periods of work where the minimum wage does not apply. This is known as the government’s Work Trial scheme. This scheme allows those on benefits who are looking for work to carry out an unpaid trial where, if successful, the workplace guarantees them a job at the end of it. As an employer, you interview the person first, and whilst they are carrying out the unpaid trial period of work, they continue to receive their benefits.

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Key Takeaways

You may decide to offer a potential employee an unpaid trial period of work. Unfortunately, no clear rules surround this, and each situation is decided on a case-by-case basis. However, by familiarising yourself with the guidance available in this area of employment, you should be in a better position to decide whether you should offer an unpaid trial period to a potential employee.

To minimise legal risks associated with unpaid trial periods, employers should:

• keep trials short, ideally not exceeding one day;
• ensure the trial has a genuine recruitment purpose;
• closely supervise and observe candidates during the trial;
• assign tasks directly relevant to the job offered;
• avoid having candidates perform work that significantly benefits the business;
• document the recruitment process, including the purpose and structure of the trial;
• consider paying at least the National Minimum Wage for trials lasting more than a few hours;
• be consistent in your approach to all candidates; and
• seek legal advice if unsure about the appropriateness of an unpaid trial.

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Frequently Asked Questions