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Time to end the injustice of unpaid trial shifts

Author
Published date
05 Dec 2018
Without strong enforcement, new government guidance on unpaid work trials won't be worth the paper it's written on

Everyone knows that demanding something for nothing is wrong.

So it was about time the government published new guidance on unpaid work trials, which it did earlier this week.

Asking workers to do an unpaid trial shift before being offered a job is not only unfair but often illegal.

Yet that is what a growing number of young workers have been asked to do in recent years.

Far too many employers have made them do a full day “trial shift”, and in some cases employers have even demanded a full week of free work.

Testing skills and abilities should be part of a structured recruitment process, but there is no justification at all for employers demanding a period of free work as the price of entry to a job.

So we welcome the government’s new guidance, but we’re also clear that strong enforcement is needed if it’s going to be worth the paper it’s written on.

Making employers do the decent thing

We’ve already had some successes campaigning against unpaid work trails.

Bad publicity led MooBoo , a bubble-tea chain, to stop making potential employees work at least 40 hours for free.

The Federation of Small Businesses also joined our side when it expressed concerns that unpaid trial shifts was shading into exploitation.

SNP MP Stewart McDonald has also highlighted the issue by bringing forward a private members bill.

And Unite is campaigning to stop the use of unpaid trial shifts in restaurants after members reported that the practice had even spread to bigger firms, including a well-known supermarket chain.

The National Minimum Wage already applies to all these workers – now it should be fully enforced.

New guidance published

After a long campaign by the TUC, trade unions and some employers groups, the government has finally started to address the issue of when unpaid work trials are allowed on pages 20-25 of its new guidance.

The guidance sets out the government’s view on how the law applies. Here are the its key tests:

Quote:

“..a court or tribunal is, in the Government’s view, likely to take account of the following factors:

• 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 NMW / NLW);

• 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 NMW / NLW 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”).”

These tests must be read as a whole. The aim is for these six tests to allow a court or tribunal to decide whether the National Minimum Wage applies and to distinguish between a genuine recruitment exercise and an employer asking for free work to cut their costs.

Time for a crack-down

This looks like a good start.

But our view is that employers who require candidates to do any productive work should be made to pay them at least the National Minimum Wage.

It’s also bad employment practice to ask for real work and not to pay for it – even if its just one or two unpaid hours.

How much the new guidance will really be worth depends on whether the government turns these words into action and starts enforcing the national minimum wage in these cases.

The TUC is pushing for the government to go further.

It’s time to crackdown on all Scrooge employers who fail to pay their staff the minimum wage.