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Parliamentary bill seeks to ban ‘disingenuous’ unpaid trial shifts

16 Mar 2018 By Emily Burt

MPs could force businesses to pay prospective employees minimum wage for trial hours

Unpaid trial shifts “have no place in 2018”, experts have said, as a private members’ bill seeking to stop employers trialling workers without pay is due to pass through its second parliamentary reading today (16 March). 

The Unpaid Trial Work Periods (Prohibition) Bill, which proposes to end the use of unpaid trial shifts, was submitted to parliament by SNP member Stewart McDonald MP after a 2017 petition was launched against two Glaswegian cafes that required staff to work a 40-hour unpaid trial before deciding whether to offer them a job. The petition gained more than 41,000 signatures. 

Proposed measures in the bill would require employers to remunerate candidates participating in a trial shift to at least national minimum wage level for any work carried out during the trial. 

Employers would also be obliged to let prospective employees know how long the trial period would last, agree to provide feedback following the shift and let candidates know what arrangements would be made to notify them of the outcome following their shift. 

Any failure to meet the requirements on the part of the employer would make them guilty of an offence under section 31(1) of the National Minimum Wage Act, which could lead to the government publicly ‘naming and shaming’ non-compliant organisations in a similar way to those that are reported to have underpaid their staff.

While the National Minimum Wage Act 1998 states that an individual who carries out work for an organisation is entitled to be paid at least the minimum wage, it allows for non-payment when someone is participating in a scheme “seeking or obtaining of work” or “designed to provide training, work experience or temporary work”.

“It’s the definition of ‘work’ that is key. If an individual is shadowing or being assessed as part of a genuine recruitment process but not actually doing ‘work’, this would not qualify for the minimum wage,” Susan Doris-Obando, senior associate in Dentons' employment team, told People Management.

In this context, the question is whether a trial shift operates exclusively as a genuine part of the recruitment process to assess skills, and does not constitute 'work', she said: “Employers should be questioning whether they genuinely need to assess skills by way of a trial shift as part of their recruitment process – given that in most cases it would be difficult to argue that such trial shifts are not 'work' from which the employer is benefiting.” 

The unauthorised use of trial shifts that cross the boundary into unpaid labour is reported to have grown significantly in recent years, particularly but not exclusively in the hospitality sector and certain professional and creative industries. 

Unite the Union recently reported a six-fold increase in complaints about unpaid trial shifts since 2015, jumping from two or three a week to between 15 and 20 currently. 

“The number one complaint is the disingenuous nature of these shifts, where people believe they are getting a job at the end but don’t. Another is the length of the shift, where people are promised three or four hours of work that turns into an eight or 10-hour shift,” Bryan Simpson, Unite Scotland's hospitality sector organiser, told People Management

“We have seen evidence of some organisations that are employing staff 9-5, from Monday to Friday, and then just renewing staff at the end of the week. This is nothing to do with trying them out for the job – it’s just to keep staff costs as low as possible.”

Simpson alleged that a well-known supermarket had brought 150 people into a branch to stock the store for two hours one morning. “Of those 150 people, two customer and two checkout operator roles were offered. The company knows it is not going to offer jobs out of it,” he said. 

Individuals who spoke to People Management about their experiences with trial shifts also reported working long hours, and receiving no pay and no communication from their prospective employer following the end of the ‘trial’. 

“I once worked a 10-hour trial shift at a cafe, and was told at the end of the shift I'd be back the week after for paid work,” said Sean McMahon, an MA student and copywriter. 

“I was never paid for the shift, and was subsequently told the news by another member of staff, after not hearing from the manager, that they'd decided not to offer me a role because they ‘didn't like my glasses’." 

Bex van der Vliet, a PR manager at Screaming Frog, said she was asked to work an unpaid trial by a London-based PR agency after succeeding in the first round of an interview process. 

“The ‘trial’ was a minimum of two weeks and unpaid apart from travel expenses. They also wanted us to prepare a detailed presentation for them and do a number of projects, all without payment,” she said. 

“I was working full-time and could not take two weeks’ worth of holiday to do the trial, so we settled on three days, which took up the rest of my annual leave. I spent 20 hours on a presentation for them and a further two on the other project – and didn’t get the job.”

The bill proposes to ease this situation. However, some industry figures have questioned the effectiveness of using only civil measures under the bill as a means of enforcing the law. 

“You often get companies completely flouting the law as it stands, because a lot of the time it’s a civil not a criminal manner. The minimum wage has been in place for 21 years, but we still saw 190 companies recently shamed by the government for underpaying their staff,” Simpson said.

“We feel the only real way to police this is to have a collective force of workers who are able to call this out when it happens and take direct action against their employers.”

Tanya de Grunwald, journalist and founder of Graduate Fog, a network that campaigns against unpaid internships in the UK, added that while explicitly making unpaid trial shifts illegal could act as a deterrent, enforcing the measure could be reliant on accounts from workers. 

“The problem will remain that the law on issues like this is always difficult to enforce, as the complaints process relies on vulnerable workers coming forward to complain on the record – which few will be likely to do,” she told People Management

“What would be more powerful would be big employers that don’t do trial shifts stepping up and being vocal about this being bad practice.” 

Chris McCollough, CEO and co-founder of Rotageek, called on employers to begin considering alternative methods of testing job candidates for role suitability, saying unpaid shifts have “no place in 2018”, and that candidates should be paid as a staff member if they are effectively working in that way. 

“There are many alternative ways businesses can assess candidates without getting them to work for free – from short role-playing exercises to developing effective interview questions,” he said.

 “If businesses still feel these trial shifts are integral to the hiring process, they must view the associated price tag as part of the cost of recruitment. This is work, not a favour.”

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