A question of Employment Status
The question of employment status is a highly nuanced and fact-dependent one. However, the requirement of some level of personal service is common to both employees and workers. If candidates are being asked to create output which looks less like an interview assessment and more bespoke and potentially usable by the employer, this raises a potential issue of either status arising. Equally, the more that an individual becomes integrated within a given organisation – for example by attending the employer’s premises within working hours or being granted access to systems – the greater the possibility of establishing employment status.
The creation of employment status can entail of a host of rights and obligations on both sides of the relationship. Furthermore, the test of employment status for tax purposes, while distinct, is closely related and, where candidates are paid, careful thought should be given to the tax implications of doing so.
As regards pay, the impression of extended interviews and trials being exploitative is arguably at its greatest where expectant applicants are not being reimbursed for their time. That is not only a moral issue, but a legal one; given the statutory obligations in the UK to provide qualifying workers with the National Minimum Wage.
UK Government guidance on unpaid trial periods
Government guidance on the National Minimum Wage specifically addresses unpaid trial periods. It acknowledges that, while they may be used legitimately, there will be examples which go too far. Although the legal distinction is unclear, for enforcement purposes the guidance identifies a number of factors which will be considered, such as:
- whether the trial is ‘genuinely for recruitment purposes’;
- ‘the extent to which an individual is observed while carrying out the tasks’;
- ‘whether the tasks carried out have a value to the employer beyond testing the individual’; and
- ‘whether trial periods are important (aside from recruiting) to how the employer runs its business’.
Employers improperly using unpaid trial periods and breaching National Minimum Wage requirements not only show disregard for applicants’ time but also risk civil and criminal penalties.
How the Equality Act 2010 can apply to the recruitment process
Moreover, it is a common misconception that the provisions of the Equality Act 2010 applies only to ongoing employment relationships. It also applies to, and during, any recruitment process. Excessively lengthy interviews at certain times of day could risk excluding people with certain protected characteristics and, quite apart from unnecessarily narrowing the pool of available talent, potentially give rise to claims of indirect discrimination.
Concerns around these practices appear to be particularly acute in the creative sector. In recent years, numerous controversies have erupted on social media over employers appearing to use content, images or ideas created by would-be employees keen to impress. In some cases, it has been alleged that these trials are being routinely abused with the aim of obtaining free copyright for valuable artistic or design works. Where possible, individuals should rely on their portfolio instead or, at a minimum, be mindful of the intellectual property they may create and take care in advance to establish what rights they will have over it.
Consider the implications of ‘extended’ trial periods
In any industry, it is plain that the practice of using so-called ‘extended’ trial periods to secure unpaid labour is both unlawful and, at a more basic and moral level, deeply exploitative. However, even employers acting in good faith who consider such practices are necessary for the recruitment of identifying the ‘best fit’ candidates whom they would want to employ, should tread carefully before engaging in intensive interview or trial processes which increasingly resemble normal work. At one end of the spectrum, those processes could frustrate or even exclude worthy candidates; at the other, they could attract legal claims and the label of being a deceitful and unscrupulous employer.
