Minimum wage and trial periods

As part of a recruitment process, candidates may be asked to carry out work trials in order to assess their suitability for the role.

Care must be taken to ensure the candidate cannot be classed as a worker during these situations and work trials should not be used in order to facilitate additional, unpaid work. If they are carrying out unpaid work, whereby they would be classed as a ‘worker’, the individual will be entitled to receive national minimum wage (NMW) or national living wage (NLW).

As current law does not define how long a ‘trial period’ should be, the government has released further guidance for situations where a work trial may require payment of the NMW/NLW. The factors to consider when determining whether the trial period will count as working time include:

• whether the trial is genuinely for recruitment purposes
• whether the trial length exceeds the time that is reasonably required to test an ability to carry out the job – this is usually no longer than one day except in very exceptional circumstances
• the extent as to which the individual is observed
• the nature of the tasks carried out and how these relate to the job offered – if the tasks are different from what would be expected in the role, this may indicate they are being done not to test the candidate but to benefit the organisation overall
• whether the tasks have a value to the employer beyond testing the abilities of the individual – if the tasks are carried out in a simulated, rather than real environment, this will normally indicate that they do not have such a value
• whether the trial periods are important to the way the organisation is run, such as being used as a means to reduce labour costs. 

Fundamentally, the longer a period continues, the more likely it is that it will result in a contract to provide work. An exception to this rule is the Government's Work Trial scheme which allows disadvantaged persons to work in a risk-free environment and provide a job guarantee if both jobseeker and employer are satisfied.

An example given within the governmental guidance is where a candidate is asked to undertake a one-week trial period in a bar alongside several other individuals, with no promise of a job at the end of it or confirmation of how many jobs will be available. In this scenario, the candidate is likely to be entitled to NMW as a week exceeds the amount of time necessary to test their skills and it is likely this trial is being used to demonstrate how many staff members are required, making it a more beneficial arrangement for the organisation.

Another scenario provided by the government is where a candidate is asked to work a two-hour trial period in a café, under supervision. This is likely to be classed as a trial period and would not result in an entitlement to the NMW/NLW.

If an individual has applied for a job as a teacher and part of their assessment is teaching a real class in the school whilst under observation, they are unlikely to be entitled to the NMW/NLW. Although the teaching is taking place in a real classroom environment, the amount of time spent carrying out the trial lesson is likely to be proportionate to the need to test their teaching ability. There is limited benefit to the employer in this situation as the usual member of staff who would be teaching will be required to observe, and then be involved in the assessment process.