Trial periods for job applicants – the proof of the pudding or taking the biscuit?

16 March, 2018

When does a prospective employee’s unpaid trial shift become exploitation and breach minimum wage legislation?  A private member’s bill currently before Parliament seeks to prohibit unpaid trial work periods and to bring them squarely within the ambit of the national minimum wage.  It would also require employers to give information upfront about the duration and scope of a trial work period, with obligations to provide feedback and to notify the applicant of its outcome.  This issue is also drawing the focus of a number of trade unions and significant attention in the media.

Trial shifts are often a very useful element of an employer’s recruitment process particularly in the hospitality sector.  For example, if a restaurant is recruiting for a chef, the application form and interview will be of limited value in assessing a candidate’s capabilities for the role.  It will want to carry out a real-time evaluation of the candidate’s skills in the kitchen – a literal instance of the proof of the pudding being in the eating.

The grey area is where the assessment crosses the boundary into the candidate undertaking work duties and providing their labour for the benefit of the would-be employer.  If a potential employee impresses management within the first hour of their trial shift and continues to work effectively as a member of the team, should the remainder of the trial shift be unpaid?

There have been recent reports of businesses taking on staff supposedly for a trial shift but in reality with no expectation of hiring them subsequently, and just using these individuals as a source of unpaid labour, for example to meet the demands of a particular catering function or to cover the absence of an employee.  Elsewhere the length and scope of the trial shift, such as a six-hour trial shift for a waiting job in a restaurant, have gone well beyond what was reasonably necessary to assess the suitability of an applicant for the job role in question.

There are similar issues and uncertainties with pre-employment training.  The hours which an employee or worker spends training are clearly payable as working time, but the law is less clear when it comes to training which an individual attends before they start working.  If the individual is required to undergo training before they start, for example under regulatory requirements, then the time spent in training should be paid as working time.  This is not however always followed in practice.

An example of this (highlighted in a recent Dispatches documentary) involved agencies which supplied housekeeping staff to hotels, and these staff had to attend several days’ unpaid training on the hotel premises.  There were reports of agencies cynically telling the housekeepers that they would have to wait for three months before they could be paid, in the expectation that many staff will leave before the end of this period and so never receive their due payments.

As we await any changes in the law surrounding unpaid trial shifts and pre-employment training, regular audits and reviews should be conducted by businesses to ensure their staff, whether hired directly or through sub-contractors, are paid correctly.

Finally on the topic of minimum wage legislation, recent enforcement action against Wagamama and TGI Fridays has highlighted that employers must meet the costs of staff meeting their uniform requirements, where the employer does not provide the uniform itself.  In the Wagamama case, the restaurant chain had required front-of-house staff to wear black jeans or black skirt with their Wagamama-branded top, without paying them any uniform supplement. This resulted in a failure to pay these staff in accordance with the national minimum wage.

If you have any queries about compliance with national minimum wage legislation, please contact patrick.glencross@crippspg.co.uk or any of our Employment team.