It is common in the hospitality, retail and leisure sectors to use a trial shift for a potential new employee. The purpose of this is for the employer to examine how the new employee will use their skills and knowledge to carry out their duties within the workplace. It typically allows an insight for whether or not the employee is considered right for the job.

A trial period is usually given to someone once they have been successful in their interview and is an extension of the recruitment process. But it is not uncommon for these trial shifts to be unpaid. Could asking someone to do a trial shift, without paying them, be considered as exploiting a vulnerable worker?

The government has stated that it has no intentions of specifically prohibiting unpaid trial shifts. Instead, it has published guidance which recommends that, as part of a recruitment process, an individual can be asked by a prospective employer to carry out tasks, without payment, in order for the employer to determine their suitability for the role.

What is the legal position for trial periods?

For someone undertaking a trial shift, they are generally considered as a ‘worker’ and if there is an agreement to be paid, it should be at least the national minimum wage. However, there could be some circumstances where ethe trial period is unpaid.

Consideration would be given to

  • The length of the trial period
  • The amount of observation whilst undertaking the tasks
  • The nature of the tasks carried out
  • How significant the tasks relate to the job being offered
  • Whether the trial is a genuine recruitment exercise or not

What does this mean for employers?

Employers should consider the guidance provided by the Government and either agree the terms of the trial period  – and the rate of pay, or be able to justify the shift as being unpaid.

The best course of action for an employer to take is to keep trial shifts short, and consider what tasks are reasonably needed to test the individuals ability to carry out the job offered. These tasks should, if possible, be carried out in a simulated rather than real life environment and should not materially differ from those that the job would ordinarily involve. If these steps are not taken, it may indicate that an employer is not genuinely testing the individuals ability but instead looking for them to carry out unpaid work- which could be seen as exploiting vulnerable workers and could lead to a claim in an Employment Tribunal for unpaid wages.

Clarice Izatt, Trainee Solicitor 16th April 2024

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