Unpaid Work Trials: Exploitative and Inescapable

It’s a hiring practice that is becoming more prevalent, one you might come across if you’re a student looking for part-time work or someone looking for an entry-level position in a low-paid job: a trial period.

This is how it works. You apply for an advertised job and you get to the interview stage and it seems to have gone well when you’re asked by the employer to come in on a trial basis to work a shift, a day, or sometimes a week or two.

There’s just one catch: you won’t be getting paid, not for the trial period.

Paddy Gorry, a science student at Maynooth University, had heard from a friend back in April that a restaurant in the town was looking to hire a kitchen porter.

“I had kitchen-porter experience,” Gorry says. “So I sent in a CV and they got back to me and said, ‘You could do a trial on Thursday.’”

He’d been rostered in for 6pm until 11pm, “but I ended up working there till about one o’clock in the morning,” he says.

The restaurant he’d worked in before was a small one and was never really hectic, he says. But the one in which he did his trial was the opposite. “It was very, very busy.”

So much so, he didn’t get time to have a break. The closest thing he got to one was when the senior kitchen porter asked him if he smoked, meaning he could nip out for one. Gorry doesn’t smoke.

The Saturday after his trial, Gorry rang the restaurant and was told the job was his if he wanted it.

But after his experience that night, he felt it wasn’t for him. He asked about getting paid for the shift he’d worked.

He wouldn’t be paid. If he’d taken the job, he would have.

There were at least two others going for the same position that had to do trials, Gorry says.

On the night of the trial he’d asked the manager how he did and if he got the job. He was told that there was another person coming in for a trial, either the following day or the day after.

“And I knew as well that there was another person on a trial before I did mine,” he says. “Depending on who got the job, I assume they were all in the same boat.”

Unsure of what to do, Gorry asked his father, who is a solicitor, but “he wasn’t really sure about it because it was a grey area”, he says. “So I just left it.”

Paul Joyce, from Flac, which offers legal advice, says the only real grey area in this situation would be if an employer told the potential employee before the trial took place that it was going to be unpaid.

“If I don’t point that out to someone, and they proceed to provide labour to me for even just half a day or a day, the presumption is that you’re going to be paid,” he says.

But in principle, he says, anyone going to work for an employer is entitled to be paid.

No Grey Area?

There is no grey area as far as specialist employment solicitor Richard Grogan is concerned.

“It is illegal,” he says. “Of course it’s illegal. You’re supposed to pay people.”

“I hear this argument regularly coming up and the answer to it is, the person has been there working; there is no exemption for a trial,” he says.

While there are certain rules for taking people on as interns, “there is no provision that says if a person is with you for less than a week you don’t have to pay them,” Grogan says.

There are a number of employers around Dublin who use trial periods regularly, effectively getting free labour for up to a week, sometimes even two, he says.

But if it’s clearly illegal, how are they getting away with it?

“Unfortunately, there are no penalties on an employer for underpaying wages; it’s just the economic loss,” he says. “Therefore the employer knows the chance of being sued is negligible.”

One avenue open to employees in such cases is to bring a minimum-wage claim against the employer.

But without proper advice from an employment solicitor, this can be a legal nightmare, says Grogan.

In order to lodge a minimum-wage complaint, you must have lodged a “Section 23” request under the National Minimum Wage Act 2000.

“The requirement to lodge a Section 23 request is completely ridiculous,” Grogan says.

More often than not, the claim has been filled out incorrectly, he says, “under the wrong act, or the wrong relief or they haven’t set out the claim sufficiently.”

“We’d see quite a number during the year where people have issued their own national minimum-wage claims. Invariably, nine out of 10 don’t do it correctly,” he say.

And in the end, the fact that you will not get paid for more than the hours you’ve worked, at the minimum wage of €8.65, means that the effort of making and lodging a claim, going to the Labour Relations Commission, is hardly worth the hassle.

“Slave Labour”

A couple of years ago, Pete Hobson fell victim to one of these trial periods.

He applied for a cleaning job advertised on a jobs website. He had experience in the area. He got a call from the company and was asked to start on a Monday and given directions to the house he was supposed to clean.

“In England [where Hobson is from], if they say ‘you’re starting Monday’ that means you have the job,” he says.

There was no mention of a trial period.

He arrived at the house at 8am and worked through to 1.30pm.

He rang the employer to say he’d finished. “But they wanted me to go to another job, another house, straight afterward,” he says.

He became suspicious then. There had been no mention of going to another job.

He said to his employer that he wasn’t prepared to do that. “I need to know if I’ve got the job before I keep working,” he recalls saying. “And they were quite rude and said I’ve got to do it.”

He held firm, telling the employer “I need to make sure I’ve got the job first and I need to make sure I’m being paid because I can’t just keep working until you decide if I’ve got the job.”

It was decided he didn’t get the job and also that he wouldn’t be paid.

He chased it up for a while, ringing and emailing, asking, “When do I get paid?” But he got no response.

“Most of the jobs I applied for after that, they all said, ‘You have to come for a trial,’ or they say, ‘Come in and do a day’s work, on a see-how-we-go basis,’” he says. “To me that’s slave labour.”

“It’s Just Not Worth It”

Laura Duggan, from Work Must Pay, an activist group that campaigns against unpaid internships and the JobBridge scheme, couldn’t agree more.

“You need to work in order to live in this society; that’s how we pay our rent and pay our bills, and that’s how we essentially have the means to live.”

“Now it is something you need to sacrifice for, that comes down from on high and goes ‘Oh, you’ve done enough slaving, here you go, here’s a wage.’”

While Work Must Pay is focused on JobBridge, Duggan is well aware of the practice of unpaid trials and is a witness to the practice.

A couple of years ago she worked a night shift in a fast-food restaurant in Dublin. “It was very common that we’d bring people in for the one or two days and they wouldn’t get paid for it. An awful lot of those people would be migrant workers.”

“It’s always been common in cafes and bars and stuff, and I’d say it has gotten that much worse,” she says.

Recently, a friend of hers did a two-week part-time trial in a restaurant in the city with two others and didn’t get paid for it, she says.

“The idea was the person who was the best at the job, the most competitive, in that setting would be the person who got the job at the end of it,” she says. “So, they were pitting three people against each other for one job.”

When her friend brought the issue of payment up with the manager, it didn’t go down too well.

“She was told, ‘Well, you’re still on a trial basis, we’re still trying to see if you’re a good fit for the team,’ which essentially means, ‘You ain’t getting a pay cheque until we decide we want to give you one,’” Duggan says.

Her friend didn’t get the job.

The law is very much on the side of the employer, Duggan says. “The employee has to fight their case very, very hard.”

“Even just to get the hours worked back, you need an awful lot of time. It’s just not worth it,” she says.

What Can Be Done

So, what can be done to change the current situation, which favours the employer over the employee, to a more balanced system?

According to Grogan, the specialist employment solicitor, the issue is only going to be tackled when the likes of the National Employment Rights Authority (NERA) are properly financed and have the “proper number of inspectors with the appropriate powers and who can prosecute”.

As it stands, Grogan says, sending a complaint to NERA in relation to unpaid work trials isn’t usually worthwhile.

This must be common knowledge as, according to a statement from NERA, although there have been a small number of enquiries into the matter, there have been no formal complaints made to the authority in relation to trial periods.

If someone was to bring forward a claim, remuneration would depend on whether there was a contract of employment in place, the statement said.

For now, anyone who is offered a trial should ask about payment, says Joyce, from Flac. And, if they can, they should get the response in writing.

Gorry’s experience of an unpaid work trial, while leaving him wary, didn’t put him off doing another work trial.

Last Friday, he had a trial for a part-time job in Subway at Liffey Valley Shopping Centre. It went well and he got the job.

He is hoping that the four hours he worked on the trial will be added to his first pay cheque.

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Author:

Damien Murphy: Damien Murphy is Dublin Inquirer's Northside city reporter.

Reader responses

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Alfreda
at 5 August 2016 at 14:07

No grey areas..someone has worked? then they get paid.

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