It is not uncommon, particularly within the hospitality and leisure sectors, for businesses to utilise trial shifts which are unpaid. This is often so that employers can see how the individual performs and to help determine whether they will be suitable for the role in question. The practice can be controversial, however, on the basis that such non-payment for undertaking a trial shift could be considered to exploit vulnerable workers.

The Government has previously stated that it does not have any plans to specifically prohibit unpaid trial shifts. Instead, it has published guidance which recognises that as part of a recruitment process, an individual may be asked by a prospective employer to carry out tasks, without payment, in order for the employer to determine their suitability for the role.

The Government guidance on this area can be found at: (scroll down for the section headed 'Unpaid work trial periods').

The legal position

The main risk involved is that the individual undertaking the trial shift is considered a 'worker' and, if so, would then be entitled to be paid at a rate that is at least in line with the national minimum wage. Where the unpaid work trail is legitimately used as part of a recruitment exercise to assess a prospective employee, the individual will not be regarded a 'worker', meaning that they will not be entitled to receive the national minimum wage and will have no entitlement to receive any pay.

The question of whether an individual undertaking a work trial is a 'worker' will depend on the facts and the circumstances of the case, including the following relevant factors.

  • Length of the trial period
  • Degree of observation whilst undertaking the tasks
  • The nature of the tasks carried out
  • How closely the tasks correlate to the job offered
  • The extent to which the tasks have a value to the employer

Where individuals undertaking trial shifts are deemed to be workers and are not paid the national minimum wage, they may pursue a claim against the employer for unlawful deductions from wages. HMRC may also undertake enforcement action, which can include imposing fines on the employer, requiring payment to the individual for time spent working, and being 'named and shamed' by HMRC as a company that has failed to pay in line with the national minimum wage.

Next steps for employers

Employers should consider the guidance produced by the Government and ensure that, if challenged, it is able to show that the unpaid trial shift was genuinely used as part of a recruitment exercise and that it was necessary in order to test the individual's ability to do the role in question.

To assist with this, the time for trial shifts should be kept short, whilst consideration should be given to what tasks are reasonably needed to test the individual's ability to carry out the job offered. Where possible, the tasks should be carried out in a simulated rather than real life environment, and should not differ from those that the job would ordinarily involve. Otherwise, it may indicate that the employer is not genuinely testing the individual's ability but instead seeking for them to carry out unpaid work.

It is also recommended that the employer explains the nature of the trial to the individual in advance, so they understand that the trial shift will not be paid. The employer should keep a written record of this.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.