In Short
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UK law does not clearly regulate unpaid trial periods of work, so employers must rely on government guidance.
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You may need to pay the National Minimum Wage if the trial lasts too long or the worker provides real value to your business.
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Trials should be short, closely supervised, and used only to assess a candidate’s ability to perform the role.
Tips for Businesses
Keep work trials brief and ensure they genuinely test a candidate’s suitability for the role. Supervise the candidate and assign tasks that reflect the job but do not provide significant business value. If the trial lasts more than a few hours or resembles normal work, consider paying at least the National Minimum Wage. Document the recruitment purpose of the trial and apply a consistent process across candidates.
Summary
This guide explains unpaid trial periods of work under UK employment law for business owners and employers. It outlines government guidance on when trial work may require payment and how businesses can structure recruitment trials appropriately. It was prepared by LegalVision’s business lawyers.
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- Basics
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. As an employer, you can ask a potential employee to carry out work as part of a trial before committing to entering into an employment contract.
Moreover, while unpaid trial work can be a legitimate exercise for recruitment purposes, it may also be used to exploit workers. To prevent exploitation, the government outlines key factors for determining whether a trial period should be paid, which are examined below.
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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 a couple of hours. If a trial lasts longer than this, you should start to pay the worker the National 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;
- length of the trial period of work is not more than reasonably needed to test the person’s capability in carrying out the work;
- 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;
- tasks provide no value beyond testing the candidate, such as in a simulated environment;
- trial period does not enable you as an employer to reduce your workforce in place of the person carrying out the trial period.
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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 on a 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 through the JobCentre Plus. This scheme allows jobseekers on benefits to complete an unpaid trial with a guaranteed job if successful, while continuing to receive their benefits during the trial.
Key Takeaways
As an employer, you should employ staff you believe are capable of the job you are offering them. To determine this, 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. By reviewing the relevant guidance, you can better decide whether to offer an unpaid trial period. Ensure the trial’s length and nature are fair and non-exploitative, and comply with minimum wage obligations.
To minimise legal risks associated with unpaid trial periods, employers should:
- keep trials short, ideally not exceeding a few hours;
- 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
It is not against the law to offer a potential employee an unpaid work trial period. However, you may be required to pay at least the National Minimum Wage if the trial period of work is deemed unreasonable for a trial period of work.
There is no specified length for an unpaid trial period of work. However, as an employer, you should ensure it is no longer than you need to reasonably assess the potential employee’s ability to perform the role. Generally speaking, any trial period over a few hours may mean you need to pay the National Minimum Wage.
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