NMW guidance updated to include information on unpaid work trials

• Employers advised to seek professional advice if they do not pay the National Minimum Wage (NMW) / National Living Wage (NLW) for work trials

• Those using spurious unpaid work trials will be liable to pay NMW/NLW

• Length of the trial period will be a key factor of whether NMW/NLW is due

• HMRC will need to assess work trials on a case by case basis

Aspire Comment

The practice of a prospective employer asking a prospective candidate to do an unpaid work trial in order to establish if they are suitable for a vacancy is a common practice.

In July 2017, Government presented a private member's Bill aimed at prohibiting the use of unpaid work trials as it is believed that they are being used to exploit workers. Whilst there are currently no definitive rules or tests, the government has updated Calculating the minimum wage guidance to include a section on unpaid work trials which details a list of considerations the government thinks the Tribunals will take account of;

• Is the work trial genuinely being used for recruitment purposes?
• Does the trial length exceed a reasonable timeframe? (the government’s view is that anything longer than one day is excessive)
• How is the individual observed when carrying out the tasks?
• Do the tasks carried out during the work trial relate to the tasks that the individual would be carrying out if they were offered the job?
• Do the tasks have value to the employer beyond testing the individual?
• Are trial periods important to the way the employer runs its business?

If you are concerned about your use of unpaid work trials, or any other aspect of your compliance with the NMW regulations, then please get in touch with Aspire to discuss how we can help.