August 17, 2018

If you're a business owner, there is no problem in asking a potential candidate to do an unpaid trial shift as part of the recruitment process - as long as you treat all applicants the same.

Why Have Trial Shifts?

Trial shifts are commonly used in the restaurant and hospitality industry to allow candidates to understand the nature of the job role and the work they will be undertaking.

It also allows employers to see what skills they can bring to the table.

They are useful to ascertain an individual's suitability for a role, especially in an industry such as hospitality where a candidate will be better off showing you their skills rather than telling you about them in a formal interview setting.

However, many trial shifts are unpaid, leaving many unhappy.

They can also create more work for existing employees and management, as they will have to support the prospective employee for the duration of the shift and carry out their own work.

It is worth considering trial shifts against assessment centres: the latter is widely used during the selection process, to gauge a candidate's skills and suitability for the role in a constructed environment.

Assessment centres also require candidates to give up their time for free, but a candidate may acquire skills to help them with future applications.

What Is The Position Legally Regarding Trial Shifts?

Legally, there is no problem in asking a candidate to do an unpaid trial shift.

Either all applicants must undertake a paid or unpaid trial shift, or they do not.

Paying some candidates that you think are better than others can leave employers open to claims of discrimination.

The key consideration is proportionality – the difference between a two-hour trial shift and making someone work for a week without pay must be distinguished.

The longer the trial period, the more likely as an employer you will risk creating a working relationship rather than a voluntary agreement.

In determining whether or not someone is entitled to be paid for the work he or she are doing for you, there are some key points to consider:

  • Notifying all candidates that a trial shift is part of the interview process;
  • Duration of the trial shift;
  • The activities that the individual is doing during the shift, so there can be no suggestion that they are working.

In summary, this is an area employment law that is still developing – employers must be wary of with more people bringing claims to the Tribunal for unpaid wages and arguing for their entitlement to National Minimum Wage.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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