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Banning of unpaid work trials

Volume 687: debated on Monday 18 January 2021

The petition of residents of the constituency of Glasgow North,

Declares that unpaid trial shifts are open to exploitation and can be used by unscrupulous employers to take advantage of vulnerable people looking for a job; further that often unpaid trials are for minimum wage jobs and the people applying for them cannot afford to work for free but may have no other option; further that unpaid trial shift workers may also have to incur the cost of travelling to and from the trial shift as well as procuring a uniform; further that potential employees may feel as though they cannot say no to exploitative trials without risking their future livelihood; and further that it is unfair to force someone to work for hours without pay, and incur additional costs, for a job they might not even get.

The petitioners therefore request that the House of Commons urges the Government to take action and ban all unpaid work trials.

And the petitioners remain, etc.—[Presented by Patrick Grady, Official Report, 18 November 2020; Vol. 684, c. 434.]


Observations from The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully):

UK employment law sets out the statutory minimum rights and responsibilities for individuals and employers in the workplace. The Government have always been absolutely clear that employers must take their employment responsibilities seriously and cannot simply opt out of them.

National minimum wage legislation provides that an individual who is ‘working’ for minimum wage purposes must be paid at least the national minimum wage or national living wage. Most workers in the UK who are over compulsory school age and who ordinarily work in the UK are entitled to be paid at least the minimum wage.

As part of a recruitment process, an individual may be asked by a prospective employer to carry out tasks, without payment, to help the employer to decide whether the individual has the skills and qualities required for the job.

An individual will generally be a ‘worker’ if they have a contract of employment or a contract to provide work or services. There may be a contract even though there is nothing in writing. Where an employer asks an individual to carry out a ‘trial’, ‘test’ or ‘recruitment exercise’, the individual may nevertheless be a ‘worker’ and entitled to minimum wage, depending on the circumstances of the case.

There are no definitive rules or tests. Work trials have to be assessed on a case-by-case basis by HMRC enforcement officers and, where necessary, by courts and tribunals. They will take account of the precise detail of the arrangements, including the duration and what the worker is being asked to do, and are likely to take account of the following factors:

Whether a ‘work trial’ is genuinely for recruitment purposes;

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;

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;

Whether the tasks carried out have a value to the employer beyond testing the individual; and

Whether trial periods are important (aside from recruiting) to the way the employer runs its business.

The Government are aware of reports of some unpaid trial work periods extending across more than one full shift or several days. Unpaid trials of this sort of length in a real (not simulated) work environment are likely to create an entitlement to minimum wage in all but very exceptional circumstances. This is because what is done by the individual would almost certainly have substantial value to the employer rather than testing the individual’s ability.

However, an unpaid trial work period lasting a few hours may be reasonable and not create an entitlement to minimum wage. This is because the main purpose would likely be to test the individual, and what is done would probably have little or no other value to the employer: the substance of the |arrangement would concern recruitment rather than providing work. Unpaid work trial opportunities as| part of a genuine recruitment process could help workers to gain substantive employment.

The Government have published guidance, with illustrative examples, to clarify the rights and obligations of workers and employers, respectively. Any worker who has concerns about unpaid work trials is strongly encouraged to call ACAS (Advisory, Conciliation and Arbitration Service) on 0300123 1100 for free, impartial and confidential advice. ACAS officers will pass on cases to HMRC for further consideration where appropriate. HMRC officers consider every complaint they receive and will take enforcement action where they consider workers are being exploited under the cover of recruitment. As such, the Government do not currently have any plans to ban unpaid work trials.