“Are employers required to pay the national minimum wage to candidates who work a trial shift as part of a recruitment process?

Designating a period of work as an unpaid ‘trial’ does not mean that the individual is not entitled to be paid the national minimum wage; it will depend on whether, in principle, the individual qualifies for the national minimum wage, and whether any of the exclusions apply.

A person qualifies for the national minimum wage if they:

• are a worker
• are working, or ordinarily works, in the UK under their contract, and
• have ceased to be of compulsory school age

If the individual does fall within the definition of a ‘worker’, they may still fall within one of the excluded categories in NMW Regulations 2015, SI 2015/621, regs 51–58. These include:

• those participating in schemes that are designed to provide training, work experience or temporary work, or to assist in the seeking or obtaining of work

• those participating in a trial period of work with an employer for a period of six weeks or less, as part of a scheme designed to provide training, work experience or temporary work, or to assist in the seeking or obtaining of work

• those students doing work experience with an employer as part of a higher education course, or further education course, in the UK

• those participating in a scheme after being homeless or residing in a hostel for homeless persons

According to guidance issued by BEIS, relevant factors in determining whether a trial period will give rise to an obligation to pay the minimum wage are likely to include:

• whether a ‘work trial’ is genuinely for recruitment purposes (if it is not, it will generally be considered to be work and the individual will be eligible to be paid the minimum wage)

• whether the trial length exceeds the time that the employer would reasonably need to test the individual’s ability to carry out the job offered (in the government’s view an individual conducting work in a trial lasting longer than one day is likely to be entitled to the minimum wage in all but very exceptional circumstances)

• the extent to which the individual is observed while carrying out the tasks

• the nature of the tasks carried out by the individual and how closely these relate to the job offered (where the tasks are different from those which the job would involve, this may indicate that the employer is not genuinely looking to test the individual’s ability, but rather to get the tasks carried out)

• whether the tasks carried out have a value to the employer beyond testing the individual (where the tasks are carried out in a simulated rather than real environment, this will normally indicate that they do not have such a value and that the individual is not ‘working’), and

• whether trial periods are important (aside from recruiting) to the way the employer runs its business (for example, where trial periods are being used by the employer as a means to reduce labour costs, this is likely to indicate that the individual is ‘working’)

Note: from the 1 April 2020 national minimum wage rates increase to the following:-

25 and over: £8.72 (the national living wage rate)

21-24: £8.20

18-20: £6.45

Under 18: £4.55

Apprentice: £4.15

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.