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New guidance: Updated guidance clarifies when recruits on trial period are entitled to the national minimum wage

Employers wanting potential recruits to work an unpaid trial period before taking them on will welcome updated government guidance to help them determine whether a new recruit on trial is in fact a ‘worker’, and must be paid at least the living or national minimum wage during the trial period.

January 2019

This update was published in Legal Alert - January 2019

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

Under the updated guidance, National Minimum Wage and National Living Wage; Calculating the minimum wage, if the terms of the trial look like terms of employment – for example, the recruit is bound by confidentiality obligations or health and safety rules - then the recruit will qualify as a worker and must be paid for their working time.

The guidance makes clear that each case depends on its facts, and sets out other relevant factors, including:

  • The trial must be genuine - the employer must have a specific, budgeted, vacant job available for the recruit after the trial period has ended.
  • The trial period must not be longer than the time the employer reasonably needs to assess the recruit. The guidance says a trial of more than one day would be exceptional.
  • The employer must show that during the trial, it has actively assessed the recruit’s ability to do the job.
  • The tasks given to the recruit during the trial period must closely relate to the job on offer. The less they relate to the job, the less likely the trial is genuine.
  • The more the tasks have a value to the employer beyond testing the individual (eg, they are ‘real’ rather than simulated tasks) the more likely the recruit should be paid.
  • If trials are an important element in the way the employer operates its business (apart from helping it recruit new staff). For example, if the practice of requiring recruits to undertake a trial is an important way to keep its costs down, it is more likely the recruit should be paid.

Operative date

  • Now

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Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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