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On Friday 16 March, MP Stewart McDonald will table his private member’s bill, the Unpaid Trial Work Periods (Prohibition) Bill, for Parliament’s vote.  This bill comes at significant time in the UK’s labour market landscape, particularly with the ever increasing use of precarious, ‘zero hours’ work, and prominent legal battles regarding worker status and the entitlement to minimum wage.

The unpaid ‘trial’ shift is something which is most recognisable in the hospitality industry.  Its common use by both large and small employers has led to a concerning dilution of what is essentially a very straightforward and clear legal principle – if an individual is providing personally their work or services to another party, they are entitled to paid for the time during which they do so.  If they are under 25 they are entitled to be paid an hourly rate of at least the minimum wage, if they are over 25 they are entitled to be paid at least the national living wage.

There is no ‘grey area’ in the law in this respect, and employers and workers should be clear on this.  If someone is invited to voluntarily take part in an interview process, which may involve a mock assessment of their ability to carry out practical tasks, such as the ‘assessment centre’ format used by many graduate recruitment schemes, this can fairly be categorised as a voluntary or trial arrangement that does not create an entitlement to payment.  But if an applicant who wants to work in a restaurant is asked to carry out table service, serve customers behind the bar, clear tables, and effectively do the same work as the current staff members of that restaurant, they are being asked to work, and should be remunerated for that work. This applies regardless of the length of that shift, their level of experience, or whether they are advised they will be surplus to staffing requirements.  

The cultural norm of the unpaid trial shift has resulted in significant exploitation of workers who feel unable to ask for payment, due to the vast amount of competition for every vacancy.  Some establishments abuse the process by regularly offering workers false unpaid trial shifts, with no intention of offering them paid work, and in fact they treat trial shifts as a planned and regular source of free labour.

The use of the practice is so widespread that there may be some employers who genuinely believe they are acting within the law when asking workers to provide their services for free.  This is why the vote in Westminster this Friday is so important, as Stewart McDonald’s bill seeks to codify the practice, to reinforce the existing legal protections, and to redress the power imbalance in favour of the workers and job applicants.  

This issue often impacts on young people who may have limited experience in the world of work, and feel they have to take any opportunity to increase their experience and improve their employability.  The great work already done by the ‘Better than Zero’ campaign in Scotland, and the launch of Unite Scotland’s ‘Fair Hospitality Campaign’, is setting the benchmark high for the future security of young workers in Scotland.  A worker who is facing pressure from an employer to undertake an unpaid trial shift can now access this invalid support to challenge exploitative practice, and redesign the cultural norm to one of fair work across the UK.

Blog by Lois Madden, Employment Solicitor

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