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When looking for new staff, you may decide that you need more than a good application form, CV or a favourable interview. There are times when you will want to see the potential employee perform typical tasks they would carry out as part of the job. This is especially the case if they are inexperienced. In this case, you may offer the potential employee a trial period of work on an unpaid basis. This allows you to assess their capability in undertaking the prospective job role. However, when doing so, you may be required to pay that person for the period of trial work. Unfortunately, there is no clear law in this area, only guidance.
This article will outline the general guidance for 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.
Law About Unpaid Trial Periods of Work
There is no law in the UK stating whether or not you should pay a person for trial work. Instead, there is guidance from the government about when an employer should be paying the National Minimum Wage (minimum wage). This guidance acknowledges that as an employer, you may ask a potential employee to carry out a trial.
Some employers ask a potential employee to carry out a legitimate unpaid trial period of work. However, some employers may take advantage of an ‘unpaid trial work period’ to benefit from a person carrying out work for them, which they should pay at least the minimum wage for.
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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 one day. More than this, you should start to pay the workers 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 the person is doing do not offer the employer more value than simply testing the person – for example, if you are testing the person in a simulated environment, this will offer no extra value to you; and
- trial period does not enable you as an employer to reduce your workforce in place of the person carrying out the trial period.
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. 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.
Key Takeaways
As an employer, you must employ staff you believe are capable of the job you are offering them. Therefore, 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 case-by-case. 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. It is crucial to consider the length and nature of the trial, ensuring it is fair and not exploitative, and to be aware of the legal obligations regarding minimum wage payments.
If you need help understanding the law surrounding unpaid trial shifts, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.
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 minimum wage if the trial period of work is deemed unreasonable for a trial period of work. This could be, for example, due to the length of the trial or the tasks you require the person to carry out.
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 day requires you to pay minimum wage.
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