With all the potential outlay that goes into onboarding a new employee, it’s not surprising that some businesses are tempted to treat the recruitment process similar to buying a big ticket item and opt for a, “try before you buy”, approach.

Benefits of unpaid work trials

On the one hand trialing a person is not a bad idea. This gives both the business and the potential employee the opportunity to consider whether there is a good fit. This applies not only in terms of what the employer expects them to achieve in the role, but also if the employee has the necessary skills and right attitude to meet these expectations.

Government unpaid work trials

The Government presently endorses the practice of work trials through the Jobcentre Plus work trial programme. The programme enables employers to offer unpaid work of 16 hours or more to unemployed individuals for up to 30 days. Participation in this scheme does not affect the individual’s benefits. For the employer the scheme is promoted as an opportunity to, “try the person out before making a final decision” on whether you want to offer them a job. Whilst for the individual they retain the security of their benefits whilst getting to grips with the challenges of a new job.

Proposed changes to unpaid work trials

During the summer SNP Minister Stewart McDonald launched a petition against unpaid work trials. He argued on behalf of individuals that the practice of unpaid work trials was exploiting workers and breaching the national minimum wage regulations. Although at present there is no definite law in place making unpaid work trials unlawful, care should still be taken if offering this type of opportunity to prospective employees. Businesses who offer unpaid work trials outside of the Jobcentre Plus scheme, may find that individuals may start to make complaints that they have not received pay for the work which they have performed during the trials.

What are the risks?

In its broadest interpretation the National Minimum Wage Regulations provides that workers should be paid for work performed. Any breaches in relation to the Regulations are policed by HM Revenue and Customs (HMRC).  So there is a possibility that well before any decision is made by Parliament to make unpaid work trials unlawful, businesses might be subjected to HMRC investigations and possible fines. How will your business fare if its unpaid work trial practices are placed under scrutiny by HMRC?

If you require further advice on employment law matters, you may wish to join our community; on elXtr we have guides and documents to help you navigate everyday business issues, including employment and health and safety issues.

If you have access to the legal helpline and want to discuss your specific circumstances with a qualified solicitor or barrister, please get in touch with them.

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