Trial Shifts are they legal or not in the UK?
It can be difficult to recruit especially at the moment, as an Employer you may be tempted to offer ‘Trial Shifts’, in our article we explore what these are, whether can they be unpaid (or not), if so, how long should they last, how should they be managed, and importantly are they legal in the UK.
Let’s take a look:
Just what is a trial shift?
As an Employer when you are recruiting you may want to take an alternative approach, CVs don’t always provide the full picture of the candidate, and not everyone shines in an interview.
It is commonplace for Employers to then consider observing potential candidates perform typical tasks, and these should be the ones expected as part of their day/day role.
In many service industries trial shifts can be common, for example; hospitality, retail, and the cleaning sector. It may be that you have or want to offer these yourself, and normally on an unpaid basis. The job trial will allow you to assess the candidate’s capability in undertaking the prospective job role.
It is important to remember that as the Employer you may be required to pay the individual for the period of trial work, trial shifts should only last a couple of hours, we cover this in more detail later in the article.
Unfortunately, it is a ‘grey area’ and there is no clear law in this area, there is guidance that we will cover, and the legislation that as an Employer that you should not just understand but follow in this respect is the National Minimum Wage Act 1998.
As an Employer can I offer ‘unpaid’ Trial Shift?
We want to be clear in this area, a trial shift is part of the recruitment process only.
It allows you the Employer to observe a job candidate performing the typical tasks expected of them and to assess their capability for the role they have applied. They can have the benefit of showing the aptitudes required and are excellent if the candidate lacks experience or perhaps the role involves soft skills.
There is no doubt they are effective for you to evaluate cultural fits and of course for the candidate to see if they like the role, and the experience.
The work trial should take place after the interview process and before any conditional offer of employment is made.
Trials are commonly referred to as:
- trial shift period
- work trial
- trial period of work
- test period
- recruitment exercise period
- trial work period
As an Employer what factors should I consider when offering unpaid Trial Shifts?
If you are an Employer and considering an unpaid trial shift, you should consider some key factors. These factors will help you decide whether it is fair for you to ask a candidate to work a trial shift without offering payment.
As an Employer, the main factor you need to consider is the length of time of the trial shift. This is because the longer the duration of any unpaid trial shift, the more likely it is that you should pay them. In this instance, you may then owe at least the minimum wage payment.
Any unpaid trial shift should be only as long as you reasonably need to decide whether the candidate can perform in the role.
Ordinarily, this would be for a couple of hours, it is highly unlikely that an unpaid trial shift would last more than one day. If this was a requirement you should pay at least the minimum wage.
Other factors may determine whether you need to pay an individual carrying out a trial period of work the minimum wage. These include whether:
- 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
- person on the trial shift is actively assessed by you the Employer, and not left to perform the job unsupervised
- tasks the person is doing do not offer you 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
- trial period is not enabling you the Employer to reduce your workforce in place of the person carrying out the trial period
As an Employer should I offer paid Trial Shifts instead?
We advise if you have a policy in place (as part of your recruitment and selection process) then you can adopt a framework that is flexible and suits and matches the needs of each role on a case-by-case basis.
As an Employer you should base your decision to pay the candidate for a trial shift, you should be base this on:
- length of the trial period
- tasks the person is carrying out
As an Employer would you be liable to any claims?
As we have mentioned earlier, it is a grey area, even though there is no law in the UK stating whether or not you should pay a person for a trial shift there is guidance by the government about when you should be paying at least the National Minimum Wage.
Any failure to do so would be decided upon by HMRC or by courts and tribunals. The main points they will consider is the exact nature of the arrangement as detailed above.
We are acutely aware that the majority of Employers ask candidates to carry out legitimate unpaid trial periods. We must always be mindful that others take advantage of ‘unpaid trial shifts’ to benefit from a person carrying out work for them, for which at least the minimum wage should be paid.
We always advise you agree on any terms with prospective candidates and in writing ahead of any trial shifts, that way you can alleviate disagreements further down the line.
As an Employer what can I offer as an alternative to a Trial Shift?
If you have been put off by unpaid or paid trial shifts then you may want to consider employing an individual on a casual or permanent basis for a temporary period, this way you can gauge their suitability and over a longer period of time.
It is safe to say that you can and should assess each new starter and the most common, tried, and tested approach is to offer a permanent Contract of Employment, ensuring you add a clause for a probationary period, you can add a length from 1 month, and commonly up to 6 months.
During, and or at the end of the probation period, you can review the performance of your new Employee and decide whether to keep them on.
How can we help you?
We suggest you seek HR support, should you not have in-house HR, or you have HR, you can chat through your options we would advise you to contact us; we can then advise you in more detail on how to manage the situation.
We are available 365/24/7 on 0333 0069489 or [email protected] We can assist with this, how to manage Trials, recruitment, best practice, meeting pay regulations, probationary periods, and policy writing in your workplace and are looking forward to speaking with you very soon.
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