Use of unpaid work trials

A Westminster Hall debate has been scheduled for Wednesdsay 29 March on the use of unpaid work trials. The debate will be opened by SNP MP Stewart Malcolm McDonald.

Unpaid work trials refers to the practice of asking job applicants to carry out a trial shift or other unpaid work, as part of the recruitment process.

All workers are entitled to be paid at least the National Minimum Wage (NMW) for any hour worked, under the National Minimum Wage Act 1998. A person is only entitled to be paid the NMW if they are a ‘worker’. Self-employed contractors, for example, are not entitled to be paid the NMW and instead negotiate their own pay.

The Department for Business and Trade's (DBT) guidance on National Minimum Wage eligibility (updated 26 July 2022) includes a section on "Unpaid work trial periods" which discusses to what extent the NMW applies to work trials undertaken as part of a recruitment process. This guidance notes that work trials can help employers "to decide whether the individual has the skills and qualities for the job", and that unpaid work trials can be a "legitimate practice" so long as they are not used "to obtain work or services for which at least the minimum wage should be paid".

The concept of a work trial is not defined anywhere in statute. With work trials the question is therefore whether a person qualifies as a ‘worker’ or not, which will depend heavily on the facts of any particular case. The DBT guidance document sets out the criteria that a court or tribunal would likely consider when determining whether a trial shift would qualify the jobseeker as a worker entitled to NMW or not, including:

• whether a ‘work trial’ is genuinely for recruitment purposes (if it is not, it will generally be considered to be work and the individual will be eligible to be paid the minimum wage)
• whether the trial length exceeds the time that the employer would reasonably need to test the individual’s ability to carry out the job offered (in the government’s view an individual conducting work in a trial lasting longer than one day is likely to be entitled to the minimum wage in all but very exceptional circumstances)
• the extent to which the individual is observed while carrying out the tasks
• the nature of the tasks carried out by the individual and how closely these relate to the job offered (where the tasks are different from those which the job would involve, this may indicate that the employer is not genuinely looking to test the individual’s ability, but rather to get the tasks carried out)
• whether the tasks carried out have a value to the employer beyond testing the individual (where the tasks are carried out in a simulated rather than real environment, this will normally indicate that they do not have such a value and that the individual is not ‘working’)
• whether trial periods are important (aside from recruiting) to the way the employer runs its business (for example, where trial periods are being used by the employer as a means to reduce labour costs, this is likely to indicate that the individual is ‘working’)

The guidance notes that "A key consideration is that the longer a trial period continues, the more likely it is that it results in a contract to provide work and that the minimum wage becomes due." Parliamentary Under Secretary of State for Enterprise and Markets, Kevin Hollinrake, responding to a written question on 17 January 2023, said that "an unpaid trial lasting more than one day is highly likely to be illegal in all but very exceptional circumstances" (PQ122161).

There are also a small number of government-run schemes that have specific exemptions from NMW legislation, such as the Jobcentre Plus Work Trial scheme. This allows work trials for up to 30 days for some jobseekers, where the jobseeker is not paid a wage and instead continues to receive their benefits while they and the prospective employer decide if they are right for the role.

Unpaid Work, HC Written Answer, 17 January 2023

Stewart McDonald MP: Time For Government To End The Scandal Of Unpaid Work Trials, Huffington Post UK, 16 January 2023

Unpaid Work, HC Written Answer, 21 November 2022

Calculating the minimum wage guidance: unpaid work trials, Department for Business and Trade, March 2021

Banning of unpaid work trials, HC Debate, 18 January 2021

Unpaid Work Experience (Prohibition) (No. 2) Bill, HC Debate, 11 September 2020

Unpaid Work Trials, HC Debate, 5 February 2019

Time to end the injustice of unpaid trial shifts, TUC, 5 December 2018

Unpaid trial shifts: exploitation or reasonable hiring practice, Morning Advertiser, 11 April 2018

Unpaid Trial Work Periods (Prohibition) Bill, HC Debate, 16 March 2018

MPs seek ban on unpaid trial shifts, Personnel Today, 16 March 2018

Unpaid Work Experience (Prohibition) Bill [HL], HL Debate 27 October 2017

Unpaid trial shifts are exploiting workers, The Times, 10 October 2017