Work trials can be a useful tool for employers and can form a legitimate part of a recruitment exercise by enabling employers to observe how a candidate performs in a real work setting before formally choosing to hire the candidate.

If the candidate performs to a high standard during the trial period, it will show the employer that they will be capable of carrying out the job role. Trial periods are often unpaid and therefore are sometimes frowned upon by trade unions and the general public.

Unfortunately, there is no specific legislation which governs this area of employment law. However, a good starting point is the National Minimum Wage Act 1998 (“NMW Act"). Under the NMW Act, any person who performs work is entitled to be paid the national minimum wage. In order to be classified as a 'worker' there must be a contract in place. This is where the ambiguity arises as individuals who take part in trial periods usually do not work under a contract. Therefore, such individuals are generally not considered to be ‘working’ under the NMW Act and are not entitled to be paid the national minimum wage, In short, it is technically legal for employers not to pay individuals partaking in work trials.

However, the government is trying to clamp down on employers abusing this process. The UK Government has issued non-binding guidance which states that the following factors must be considered by employers contemplating using unpaid work trials:

The work trial must be a genuine part of the recruitment process;

• The work trial must not exceed the amount of time reasonably required to assess a candidate’s ability. In most instance, any trial longer than a day will require the NMW to be paid;
• Whether the individual being trialled is observed on the trial;
• Whether the tasks performed by the individual are related to those they can be expected to perform on the job; and
• Whether the tasks performed by the individual have a value to the employer beyond testing the individual.

For employers to mitigate the potential risk associated with unpaid trials, it is prudent for employers to take time to explain to participants about the trial. For example, to set out:

(a)    how long the trial period will last;

(b)    what the trial will entail; and

(c)   what they are looking for in a successful candidate.

While this area of employment law remains ambiguous, there could be light at the end of the tunnel. The Unpaid Trial Work Periods (Prohibition) Bill has been introduced into the UK Parliament to tackle UK employers exploiting unpaid work trials. If the Bill successfully goes through Parliament and receives Royal Assent, participants in unpaid work trials in Northern Ireland will be deemed to be workers under the NMW Act and they will be fully entitled to be paid the NMW.  While this Bill is only in its infancy, it shows that there is an appetite to change this area of law.