Unpaid and unfair

In recent years, there has been an increasing amount of press surrounding trial shifts and whether or not people should be paid for them. Currently in the UK, unpaid trial shifts are legal and to date there is no real definition for them.

HMRC issued guidance in order to try and minimise trial shifts being unpaid. HMRC state that ultimately the decision lies with tribunals and courts to decide whether the minimum wage should be paid in specific cases. This does not provide a lot of protection for people who are being asked to come in for an unpaid trial shift. There is no uniform guidance on how long a trial shift should be and there certainly is no consistent execution of the guidance to unpaid trial shifts by employers.

A person seeking employment is already in a vulnerable position as they often do not have the luxury to challenge an employer who insists on an unpaid trial shift as it may lead to employment at the end of it. However, for many people, employment at the end of a trial shift does not come to fruition.

Ellen Reynolds was a 19 year old who started a petition for change following a 5 hour unpaid shift in a Bearsden, Glasgow restaurant. She was required to purchase particular clothing for the trial shift, spending her own money on this to then work 5 hours unpaid and not hear back from the restaurant in the end. Unfortunately, she is not the only one who has this story. Personally, I worked in a restaurant in Dundee for 5 hours unpaid which ended in tears. I was asked to take a tray of 12 drinks to a table which, in my first job in a restaurant, was not an easy feat and I spilled them all over myself. I then had to finish my unpaid trial shift in soaking wet clothes to, unsurprisingly, never hear from the restaurant again.

There is no adequate definition for a trial shift and there have been a variety of big companies exploiting the benefits of this. In 2018, the supermarket chain Aldi advertised 150 unpaid trial shifts in order to prepare a new store for opening. A Glasgow cafe required applicants to complete 40 hours of unpaid trial work before they would be considered for the job. A definition of trial shift work is required in order to tackle the issue of taking vulnerable people in need of a job for granted.

HMRC have attempted to help businesses navigate what they can and cannot do by providing the following considerations:

• whether a ‘work trial’ is genuinely for recruitment purposes (if it is not, it will generally beconsidered 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 anindividual conducting work in a trial lasting longer than one day is likely to be entitled tothe 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 main issue with the above guidelines is that the they can be interpreted in many ways and continue to be exploited as the points are purely guidance and do not provide any real protection to people seeking work. In the majority of hospitality work, you can determine whether someone is fit for the job in an hour, yet according to the above a full unpaid day shift is allowed. In hospitality, this could be up to 12 hours.

In a YouGov poll, 65% of people responded stating that unpaid work trials are unfair. To date, there is still no legislation properly covering the area. Everything is subjective and can be interpreted in a variety of different ways. People are often unaware of their rights in these circumstances and what they can and cannot challenge. Clear legislation is needed in this area to ensure work trial shifts are not abused.

Blog by Jenny Scott, Solicitor