Trial Shifts. To pay…. ? or not to pay…..? That is the question.

TRIAL SHIFTS

To pay…. ?or not to pay…..? That is the question.

Trial shifts have long been a hot topic; coveted in the hospitality industry and relied upon to
assess suitability of prospective employees, the debate on whether they should be paid or
unpaid rages on.

After seeing a post in one of our Facebook groups and a lot of uncertainty and disinformation around this topic, we have asked Kaajal Nathwani, Partner and Head of Employment Law at Curwens to explain the legal  position when it comes to Trial Shifts.

Why are trial shifts used?

Trial shifts have long been used as part of the recruitment process as a method of assessing
how a potential employee will perform in the job and under pressure. They are used to assess
suitability and capability.

Abuse of trial shifts

Some businesses require candidates to work more than an average shift, with reports
suggesting that some have required 40 hours of unpaid shifts or have used trial run
candidates to cover staff sickness absences.  There have been petitions requesting the
House of Commons to urge the Government to ban trial shifts but no such measures are
intended as yet.

Why should employers think twice before using trial shifts

UK employment law sets out statutory minimum rights and responsibilities for individuals and
employers in the workplace. National Minimum Wage (“NMW”) legislation provides that an
individual who is ‘working’ must be paid at least the national minimum wage or national living
wage.
An individual will generally be a ‘worker’ if they have a contract of employment or a contract to
provide work or services. However, there may be a ‘contract’ even though there is nothing in
writing, as is often the case when a prospective employee is asked to carry out a trial shift.

Therefore, the individual may be deemed a ‘worker’ and therefore entitled to minimum wage
for the trial shift, depending of course on the specific circumstances of the case.

How do you know if the trial should be paid?

Unhelpfully there are no set rules. Work trials have to be assessed on a case-by-case basis
taking into account of the specific details of the arrangements and factors such as:

 Duration
 What the worker is being asked to do,
 Whether the ‘trial’ is genuinely for recruitment purposes;
 Whether the trial length is reasonable to assess suitability;
 How and to what extent the individual is observed while carrying out the tasks;
 Nature of the tasks carried out by the individual;
 Whether the tasks go beyond testing the individual;
 Whether trial periods are important to the way the employer runs its business;
 Is the trial in a real or simulated work environment?

Employers beware

Unpaid trial work periods that are more than one full shift or spanning several days, in a real
(not simulated) work environment are likely to create an entitlement to minimum wage in all
but very exceptional circumstances.

Why? Because what is done in the trial is likely to have had substantial value to the employer
rather than really testing the individual’s capability and suitability.

It is all about reasonableness

An unpaid trial work period lasting a few hours may be reasonable and not create an
entitlement to minimum wage.
Why? Because the main purpose would likely be to test the individual, and what has been
done would probably have little or no other value to the employer. Unpaid work trial
opportunities as part of a genuine recruitment process could help workers to gain substantive
employment.

Reference Periods

NMW calculations are made over a pay reference period. The hourly rate should not fall below
the NMW in the first pay reference period for any employee because of any unpaid trial shift
worked, or induction or training sessions attended. 
A cautious approach is to pay for the trial shift to avoid falling foul of NMW requirements due
to the reference period taking into account any trials worked.
HMRC
HMRC can consider complaints relating to trial shifts and will take enforcement action where
they consider workers are being exploited under the cover of recruitment.

How trial shifts are paid

It is acceptable to pay ‘prospective’ employees cash in hand for the hours worked as a trial
and give them a self-reporting certificate so that the individual is responsible for any tax or NI
that may be due. This is administratively less burdensome than adding individuals to payroll
for one payment.

Top Trial shift Tips

Employers and prospective employees should both be clear:
 how long the trial period is going to last;
 what the prospective employee will be expected to do;
 whether the trial shift will be paid or unpaid and written evidence retained in event of
a HMRC audit;

Discrimination

Any recruitment process must be the same for all applicants to reduce the risk of any claims
of discrimination.

For further advice please contact Kaajal Nathwani of Curwens LLP on 020 8363 4444 or
kaajal.nathwani@curwens.co.uk.
Curwens LLP is a full service law firm with offices in Enfield, Royston, Hoddesdon and
Finchley. www.curwens.co.uk Twitter: @curwenslegal Facebook:
https://www.facebook.com/curwens/ Linkedin: https://www.linkedin.com/company/curwens

Photo by Dan Burton on Unsplash