Are trial shifts legal in the UK?

Last updated: February 2023 | 3 min read

What is a trial shift?

A trial shift is part of the recruitment process. It allows an employer to observe a job candidate performing typical tasks and to assess their capability for the job role.

They are common in the service industry.

A trial work shift can show the candidates aptitude better than a good application form, CV, or interview, particularly if they are inexperienced or if the work involves soft skills such as customer service or team working.

It can also be an effective way for businesses to evaluate work style and cultural fit within the organisation, and for the potential employee to gain a better sense of the job and work environment.

They usually take place after an interview stage.

When offering trial shifts, an employer may be required by law to pay for the work done.

There is no definition in law for a trial shift. It may also be known as a trial shift period, a work trial, a trial period of work, a test period, a recruitment exercise period or a trial work period.

What law applies to trial shift periods?

In the UK, there is a great deal of law that governs employment, such as the National Minimum Wage Act that which requires employers to pay minimum wage, or the Equality Act 2010 which prevents discrimination against any protected characteristics, such as age, disability, gender, race, or religion.

For trial periods of work, there are fewer clear rules. The difficulty is always in establishing whether the shift creates an employment relationship, and so is governed by employment law, or is simply a trial.

Indicators that an employer-employee relationship has formed include the worker:

  • not just demonstrating the skills necessary for the position, but carrying out complete productive work;
  • performing tasks that are not related to evaluation; and
  • working in the place of an employee.

In a recent poll, 65% of UK citizens replied that they believed unpaid work trials are unfair. After it became known that a café in Glasgow made applicants complete 40 hours of unpaid work before they could even be considered for a server position, 140,000 people signed a petition against unpaid work practices demanding legislative action to protect easily exploited jobseekers.

Factors to to take into account when offering unpaid shifts

A prospective employer should be clear to the candidate about the purpose and duration of the trial and ensure that it is necessary and proportionate to a genuine recruitment process.

Particularly, they should take into account the following.

The main factor is the length of the trial period, which should be limited to the time necessary to determine the candidate's suitability for the job.

In general, an unpaid trial period should not last more than one day. However, one hour, a few hours or even 30 minutes might be more appropriate.

Other factors to consider include:

  • whether the trial work genuinely represents the work in the role;
  • that the person on the try-out period is actively assessed by the employer, and not left to perform the job unsupervised;
  • that the tasks do not do any more than test the applicant for the role; and
  • the evaluation period is not enabling the business owner to reduce their workforce (or benefit from free labour).

Example of an unlawful unpaid work trial

Jane asks a local restaurant for a job as a waitress. The restaurant owner tells her that he is not actively recruiting, but suggests that she works for a couple of days that week on an unpaid basis as a trial because he is short on staff.

At lunchtime on the first day, the restaurant is busy and the owner leaves Jane to serve tables without supervision. At the end of the second day, he asks whether she can stay after the restaurant closes to clients to help clean up.

This would be an unlawful unpaid work trial for a number of reasons: the duration of the probation period is too long, Jane is not being assessed at all times, and the scope of her work is outside the role she has asked to perform.

Should you pay a candidate for a trial shift?

Regardless of whether the assessment might be considered employment or not, government guidance advises that employers should pay job applicant at least the national minimum wage (‘NMW’) for any trial shifts they are asked to undertake.

Alternatives to unpaid trials

A business owner may consider employing an individual on a casual or permanent basis for a temporary period to guage their suitability.

A casual contract (a zero hours contract) involves minimal commitment and can be terminated with as little as an hour's notice, making it ideal for a temporary employee.

Alternatively, an employer can enter into a permanent contract with a probation period. At the end of the probation period, a manager can review the performance of the employee and decide whether to keep them on.

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