The debate around unpaid trial shifts is heating up.
With claims of job candidates being used to cover sickness absence or asked to complete prolonged trials with no hope of a job at the end, it’s no surprise that the issue has hit the headlines.
A private member’s bill, tabled to ban the practice, has had its second reading in parliament, and a recent YouGov poll found that 65% of the public believe that unpaid work trials are unfair.
So are there really legions of unscrupulous employers taking advantage of vulnerable job seekers desperate for work? MP for Glasgow South Stewart McDonald says he introduced the bill in response to a growing number of reports from interviewees being asked to work for free for extended periods without any real prospect of a job. McDonald says this is either because the job “doesn’t exist”, there are large numbers of people trying out for a tiny number of jobs or, most worryingly, employers and managers are trying to cover staff absences or shortages without paying for it.
'Rise in complaints'
Bryan Simpson, an organiser at the Unite union, says the organisation has seen a rise in complaints about the issue. “We get emails or messages on our Facebook page and I would say that the number of complaints and requests for support has gone from about two or three maybe two years ago, when it wasn’t really on our radar at all, to about 15 or 20 complaints a week.”
“We’d say there’s been a five or six-fold increase in the number of complaints about it. So that certainly raised our awareness that something needed to be done.”
Anecdotally, he says that about 80% of the complaints the union gets are from candidates interviewing for work in the hospitality industry. “The vast majority are in hospitality, particularly the pub industry. Pubs, bars and clubs are a large proportion of the unpaid trial shift complaints we get.”
Lois Madden, an employment lawyer at Thompsons Solicitors, says there’s been a general increase in things like zero hours work, which has led to more of this kind of thing happening. She suggests that the rise in complaints could also be due to cases being in the papers and people wanting to find out what their rights are, so they get in touch with a union. “People are just more aware that it isn’t something that should be happening,” she says.
Unsubstantiated allegations
However, Kate Nicholls, chief executive of industry body UKHospitality, warns against taking allegations, which may not be substantiated, at face value and questions if this is a really a growing problem. She also raises concerns about the catchall term ‘unpaid trial shift’ itself.
“I don’t think it is a growing problem,” she says and suggests that the complaints may be rising for another reason. There has been an increase in pub employers getting involved in Government-supported free work training schemes, she says. “[These schemes] involve an interview and a trial shift, which explains why people might perceive that there has been an increase in trial shifts.”
Such schemes are aimed at supporting hard-to-place job seekers, such as long-term unemployed people, back into work with training and experience.
“There is a sense that this positive contribution to help people get ready for work, and providing work experience, is being misconstrued,” she says. “I’ve not come across any of our members who are doing long, unpaid trial shifts and using that labour as a replacement for people who would otherwise be in work.”
Nicholls says there are two ways that trial shifts are used in the industry: as work experience or as a practical assessment making up part of an interview process. “Both of those are entirely legitimate and are helpful for the workers and employer. We have to be careful about how we describe it.”
The industry body is currently working on guidance for employers, which it aims to publish in the summer, to help ensure best practice in this area.
Routinely happening?
“From discussions with members, [trial shift exploitation] is not something I recognise as routinely happening across the industry. That’s not to say it won’t ever happen, there will be people who do that, but the discussions I’ve had with industry HR directors is that it is not the way trial shifts are used,” Nicholls says.
Unite admits it needs more data and plans to conduct a large quantitative survey soon. But while the exact scale of exploitative practices remains unclear, the negative perception that some employers might do this could damage the reputation of all sector employers. And if job applicants don’t understand the difference between a trial shift versus, for example, shadowing, work experience or pre-work training, they could well feel they have been treated unfairly.
So it’s no surprise that employment law associate and solicitor Melanie Morton from Nelsons urges employers that do use them to exercise caution.
“Asking people to do an unpaid trial shift in the pub industry isn’t uncommon, in fact it is probably the most common in that industry. It’s less common in shops and offices. You might ask someone to do a typing test as part of their application but not to come and work for three hours in the office and see how they get on.”
Morton says: “The issue for pubs is whether it is a true trial or not because it is quite appropriate from an employer’s perspective when assessing suitability to agree to a couple of hours of unpaid work. But you’ve got to be proportionate.”
She asks if it is really appropriate or necessary to ask someone to spend the whole day or even the whole week, in some circumstances, if you’re assessing whether they have a natural aptitude for waiting tables or being bar staff.
“The problem arises when [a trial] becomes prolonged or repeat. That then errs into an employment relationship. My view is that if someone is asked to work more than a couple of hours, it is safer to pay national minimum wage for it or to agree expenses, or their travel costs. It is where it turns into actual employment really.”
Cash in hand option
Madden says there’s little need for trial shifts to be unpaid. It may be a bit of a hassle for employers to put someone on the pay role if they don’t then hire them at the end of the shift. However, she says: “I’ve heard of employers that pay someone cash in hand for a two hour trial. They give them a self-reporting certificate so the individual is responsible for any tax or national insurance. But there’s unlikely to be any due for such a small amount of money.”
Morton adds that trial shifts are “not necessarily about getting free work” because the employer is, or should be, supervising. “It’s not like someone is coming into the business to work for free without limitations. They are being supervised for the purpose of their application. There’s nothing wrong with requesting a trial, provided it is limited in length and applied consistently.”
While unpaid trial shifts are legal, many pub employers have already taken the decision not to use them. Oakman Inns & Restaurants is one of them. Jill Scatchard, the group’s HR director, says the “traditional trial shift is not acceptable in Oakman’s recruitment strategy”.
“In a typical interview, we assess the applicant’s potential and their ability to meet our cultural and business values in their preferred role. If the position requires a certain skill level, we ask them to give us a demonstration, which is done in a non-customer-facing environment. But in the case of other positions, we will conduct a short role-playing exercise to assess their suitability.”
Scatchard adds: “We’re open minded in our recruitment so when, for example, someone with no hospitality experience is recruited by the company, we will have based our assessment at the interview stage on their adaptability, interests and potential for succeeding in their new position.”
Other well-known pub sector employers have also chosen not to employ the practice with Fuller’s, City Pub Company and Beds & Bars, among others, telling The Morning Advertiser it is not part of their recruitment process.
Competency-based questions
A spokesperson for Fuller’s says: “We use competency-based questions to assess suitability and they will be given training and a thorough induction to ensure they have the tools to do the job.”
Fuller’s does have a ‘cook off’ for senior kitchen positions but “this is a two-hour session and they cook only for the executive chef and the manager of the pub, not for the customers”, the spokesperson explains.
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Commenting on its Bermondsey Pub Company arm, Andy Holness, HR director at Ei Group, says: “Prospective team members shadow front-of-house colleagues and have the opportunity to carry out a variety of tasks as part of the overall interview process, which typically lasts no longer than an hour. This short service session allows us to assess a candidate’s suitability for the role and also whether the job appeals to that individual before an offer is made.”
Phil Strong, former managing director of Chameleon Bar & Dining and industry consultant, says employers need to be clear if they are asking people to work a trial that “the prospective employee is not replacing other staff” and has the opportunity to ask questions, learn and see how they feel about the job.
He says that trials give employers a chance to see how the candidate interacts with other staff and customers, and to see how they will fit in.
“If staff can only be employed without a trial shift, it will mean staff with no trade experience will be less likely to be employed,” he says.
For employers who want to continue, perfectly legally, to use unpaid trial shifts, the key is to be transparent and clear about what is happening and why.
Nicholls says: “[It needs to be clear that] you can’t always have a job at the end of the process if you’ve gone through a four week pre-entry training programme, for example. You won’t always get a job at the end of that because no one is guaranteed a job as part of a job application process.
“But if workers are being exploited, that is something we would take very seriously indeed, although I haven’t had any evidence that is taking place on a large scale.”
Raise concerns with the employer
She says if there are cases where people think they’ve been taken advantage of, these need to be raised with the company concerned and evidence provided that it has happened.
It’s about having clear policies around their use and making sure that terminology is very clear when communicating with potential employees and during training programmes.
With Unite’s large-scale survey in the pipeline, and a broader movement backing the private member’s bill ban, alongside the union’s longer running Fair Hospitality campaign, the debate around unpaid trial shifts is, clearly, far from over.
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