Unpaid Work Trials and the National Minimum Wage

Unpaid work trials are a common feature in the recruitment process, particularly in sectors like hospitality, retail and care. While not defined in statute, unpaid work trials are addressed in government guidance. Though they can serve a legitimate purpose allowing jobseekers to showcase their skills and employers to assess a candidate’s suitability, there may be a risk of the work trial slipping into work or services for which the National Minimum Wage (NMW) is required.

What Are Unpaid Work Trials?

An unpaid work trial typically involves a prospective employee performing tasks for a short period without pay, to help the employer decide whether to offer them a job. While this can be a valid recruitment tool, it must be handled carefully to avoid breaching NMW guidelines.

When is the National Minimum Wage payable?

According to government guidance on calculating NMW an individual undertaking a trial may be considered a “worker” and therefore entitled to NMW depending on the circumstances:

• Purpose of the trial – Is it genuinely for recruitment? If not, NMW is likely owed
• Length of the trial – A trial longer than one day is generally considered excessive and likely to incur NMW
• Level of Observation – Minimal supervision suggests the trial may not be genuine
• Nature of Tasks – Tasks should closely relate to the role. If they don’t, or if they benefit beyond testing the candidate, NMW may be due
• Value to the Employer – For example, preparing food for paying customers during a trial shift is likely to trigger NMW entitlement
• Intent Behind the Trial – If trials are used to reduce labour costs or serve other purposes beyond skill assessment, this raises concerns

The Scale of the Issue

The Government’s Education Skills Survey in 2022 revealed that:

• Around 10% of employers offered unpaid work trials
• There were approximately 860,000 work trials
• 85% of employers offering trials of two weeks or more paid participants, though payment amounts varied
• 93% of trials lasted under six months, with half under two weeks

These figures highlight the widespread use of work trials and the potential for detriment to individuals, especially when trials are unpaid and exceed reasonable limits.

Best Practices for Employers

To stay compliant and fair:

• Limit trial durations to one day unless exceptional circumstances apply
• Ensure tasks are directly related to the role being recruited for
• Supervise trials closely to demonstrate their recruitment purpose
• Avoid using trials to fill staffing gaps or reduce costs
• Consider paying NMW as a precaution, especially for longer or more involved trials

Takeaway

In the future we could see the strengthening of NMW protections that specifically deal with work trials. This could be by the formal introduction of terms such as “work trial” into the law and clear rules as to when they are permitted and guidance on the circumstances in which NMW would be due.