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Recruiting the right staff – are unpaid work trials lawful?

Employment Law & HR

Finding the right people to join your Organisation can often be time difficult and consuming, the perfect candidate may be just that, only on paper. One way that Organisations can look to minimise this risk is by using trial work periods to assess if a candidate has the right skills and are a good fit for the business.   It goes without saying that employers should pay their workers at least the national minimum wage or national living wage (NMW/NLW) however, the Government has now issued some guidance on when employers may use unpaid work trial periods as part of their recruitment processes.

There is a lot of negative press around using trial work periods and these have, on occasion, been known to attract unwelcome headlines of being unscrupulous business and abusing people seeking jobs. In reality many employers use a compromise where candidates have been asked to perform a few of the basic required skills, but without those tasks reflecting the actual demands of the role. For example, a candidate seeking a position as a barista in a coffee shop might be asked to make a cappuccino for an existing staff member or as a complimentary drink for a customer, but would not be asked to perform the same task under customer and time pressure.

The situation now however has slightly changed. The newly issued guidance suggests that unpaid trial shifts can be used as part of a ‘genuine recruitment process’.  This is subject to a few provisos, such as ensuring candidates are monitored and assessed during the shift, the duration of the trial shift is no longer than needed to assess the prospective employee and that the “work” undertaken is analogous of the role, should the candidate be successful. 

As a final consideration, it would be prudent to ensure that when using work trials, a consistent approach is followed to avoid any risk of discrimination claims.  Although it is has been clarified that an unpaid trial shift can be used, there are still several factors that need to be taken into account.  The correct use of a trial work shift can be a key tool in the recruitment process, allowing both the candidate and the employer to assess whether they are a good fit.

If you would like to know more about utilising trial work shifts, please feel free to contact us.

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