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Trial shifts: to pay or not to pay?

By Esther Smith , 09-Aug-2017
Last updated on 11-Aug-2017 at 17:16 GMT2017-08-11T17:16:51Z

Trial shifts: to pay or not to pay?

The use of unpaid trail shifts in the industry was thrown into the spotlight last month amid claims that restaurateurs were exploiting workers' rights. Esther Smith from law firm TLT outlines what you need to know about the practice.

The restaurant and hospitality trade has traditionally used unpaid work experience to give individuals a real opportunity to fully understand the nature of work on offer. Now, we are seeing the use of unpaid ‘trial’ shifts forming part of the recruitment process, which has drawn negative press attention for the likes of Edinburgh chef Mark Greenaway.  

It is interesting that objection has been raised about this, and worth considering trial shifts alongside the equally popular practice of using ‘assessment centres’ as part of the recruitment process in other professions, which has never been questioned.

An assessment centre may not involve an individual delivering services; the experience is designed to test the individual’s suitability for the role in question. The time is unpaid and the skills or techniques they may pick up all go towards helping them with their future applications.

Unhappiness about people undertaking unpaid trial shifts when applying for jobs in hospitality may stem from a perception that they are carrying out ‘work’ in a real, rather than constructed, environment, providing services on behalf of the employer with no obligation to be paid. This does however seem to ignore two fundamental issues.

First, it seems entirely sensible to test an individual’s suitability for the role, especially in such a practical industry where putting them in a work position for a short period of time is arguably more effective than just conducting a formal Q&A interview.

Second, having an untrained team member on site actually creates more work for the employer and their existing team. The applicant may be supernumerary on the shift, but experienced team members will be supporting, instructing and often correcting them and their mistakes, alongside and in addition to carrying out their own workload.

Mark Greenaway has come under fire for his use of unpaid trail shifts

Mark Greenaway has come under fire for using unpaid trial shifts

There is no legal issue in asking someone to conduct a trial shift as part of the interview process. However, you can get into hot water for treating different applicants differently – put simply, either the trial shift is an unpaid part of the interview or it is not. Deciding to pay some ‘good’ applicants and not paying others could give rise to claims of discrimination.

The test here is one of proportionality – a two-hour shift to get a feel for someone’s aptitude is very different to making them do a week’s work before giving them the job. The longer the unpaid arrangement, the greater the risk of something other than a voluntary arrangement being created – and this applies equally in recruitment processes as to internships.

There is developing case law in this area with more people challenging the unpaid status of the work they do. The method for this is to bring an Employment Tribunal claim for unpaid wages, arguing entitlement to the National Minimum Wage.

Longer term interns are often paid expenses, but have been held to be entitled to statutory minimum rates of pay for each hour worked in certain circumstances. Here are some key points to bear in mind:

  • What activities is the individual is doing? They should be genuinely work-shadowing and not undertaking work that adds value to the employer.
  • The nature of internships should be entirely voluntary – give the individual the ability to pick and choose the activities they get involved in.
  • If paying expenses these should reimburse the individual for actual expenses incurred, rather than offering a set rate. Flat rate expenses can be regarded as payment for the work, indicating an employment relationship.

Esther Smith is an employment partner at UK law firm TLT @TLT_Employment