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Paying for Unpaid Work Trial Periods

14 December 2018 #Employment


Unpaid work trials have long been part and parcel of securing employment. Employers are naturally keen to assess an individual’s employability before remunerating their efforts.

Such schemes could soon be made entirely obsolete as an “Unpaid Trial Work Periods (Prohibition) Bill”, that hopes to outlaw such trial periods, gained real traction at the beginning of this year. Employers should be wary of the risks involved if not adequately compensating persons, even if they are only ‘shadowing’.  

The Trade Union Congress have been particularly vocal about such initiatives and perhaps in response to perceived in-action, this month the government updated its ‘Calculating Minimum Wage’ guidance for employers to include a 5 page section on ‘Unpaid Work Trials’.

The guidance is quick to point out that there are no definitive rules or tests and stresses that whether a work trial results in a contract requiring National Minimum Wage (NMW) or National Living Wage (NLW), will be highly circumstantial. That said, employers offering such schemes under the banner of a ‘recruitment process’ should carefully consider some, if not all, of the following:

  • Is the ‘work trial’ genuinely for recruitment purposes?
  • Does the trial length exceed the time that the employer would reasonably need to test the individual’s ability to carry out the job offered?
  • Is the individual being observed during their trial period?
  • What are the tasks the individual is being asked to do? How closely do they relate to the job that the individual is applying for?
  • Are the tasks being carried out of a value to the employer that goes beyond the testing of the individual?
  • Is the trial period important to the way the employer runs its business?

A key consideration will be the length of the trial period and too many ‘No’s’ as responses to the questions above are likely to show the individual is in fact working and therefore entitled to NMW or NLW for that work.

You can find the Government’s full guidance here.

 

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
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This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

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Jacob Montague

Jacob Montague
Paralegal

E: jmontague@clarkslegal.com
T: 0118 960 4613
M: 0790 9964 585

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