She arrived at ten, was handed an apron, and worked until four. Saturday, so it was flat out from about half past eleven. She cleared tables, ran food, took card payments and, by the middle of the afternoon, was serving on her own section while the supervisor covered the till.
At four she was thanked, told we would be in touch, and went home. We did not offer her anything and she did not ask. A week later we hired someone else. Nobody in the building thought there was anything unusual about any of it, because in hospitality there isn't — which is exactly the problem.
What we told ourselves at the time
That it was a trial, not a shift. That everyone does it. That you cannot tell whether someone can work a busy floor by talking to them in a quiet room, which is true, and that therefore the only fair test is to put them on the floor when it is busy, which is where the reasoning quietly falls over.
The bit we were not honest about was that we had rota'd her in. On that Saturday she was not additional to the team, she was part of it. If she had not turned up we would have been short.
What HMRC actually looks at
HMRC's guidance on this is more nuanced than either camp claims. An unpaid trial lasting a few hours can, in some circumstances, be reasonable and not create an entitlement to the minimum wage. But the longer a trial runs, the more likely it is to amount to a contract to provide work — at which point the minimum wage becomes due.
The factors HMRC weighs are worth knowing, because they are the questions you should be asking yourself before you set one up. Is the trial genuinely part of a recruitment process, with a real vacancy at the end of it? Is its length no more than is reasonably needed to test the person's ability? Is the individual being observed throughout? Do the tasks relate closely to the actual job? Does the work have value to the employer beyond testing the candidate? And are unpaid trials important to how the business runs — in other words, is this a recruitment method or a staffing method?
The clearest line in the guidance is this: unpaid trials extending across more than one full shift, or several days in a real working environment, are likely to create an entitlement to the minimum wage in all but very exceptional circumstances — and particularly so in sectors where people are paid at or close to the minimum. Hospitality and retail are exactly those sectors.
A test asks whether someone can do the job. A shift asks them to do it. HMRC's questions are all aimed at working out which one actually happened.
Where ours fell
Badly, on almost every question. Six hours is not the shortest period needed to see whether someone can carry three plates. She was unobserved for most of the afternoon. The tasks had obvious value to us beyond testing her, because they were the tasks the business needed doing that day. And we did it often enough that it was, in honesty, part of how we staffed Saturdays.
Two hours with a supervisor watching would have told us everything we needed to know. We ran six because six was useful.
What it can cost
The arrears are the small part. Six hours at the 21-and-over rate of £12.71 is £76.26. Four candidates across a year is £305.04, and arrears are payable at current rates rather than the rate that applied at the time, so delay makes them grow.
The penalty is the part that gets attention. Where HMRC issues a notice of underpayment, the penalty is 200% of the arrears — a minimum of £100 per notice and a maximum of £20,000 per worker. That penalty is halved if the arrears and half the penalty are paid within 14 days. On our four candidates that is £610 reduced to £305, so the whole episode would have run to a few hundred pounds.
And then there is the naming. The government publishes the names of employers found to have underpaid, and for a business whose customers live within three miles of the door, that is not a rounding error. It is also the sort of thing that gets screenshotted.
What we do now
Paid trial shifts, at the going rate, capped at two hours, with a named person responsible for watching and a written note of what we were assessing. Because the person is working for us, we do a right-to-work check before they start, they are covered by our employers' liability insurance, and those hours accrue holiday like any other.
Where we genuinely only need to see a skill rather than a shift, we do an unpaid twenty-minute observed task away from the floor — making two coffees, laying up a table — which is a test rather than production, and short enough that nobody could reasonably call it work.
The whole thing costs about £26 a candidate. Set against a bad hire, that is nothing: the real cost of a bad hire is measured in months, not hours. And the trials have got better, because a supervisor who is being paid to watch actually watches.
The uncomfortable bit
Nobody in this story was a villain. We were not trying to get free labour; we were copying what every other kitchen and shop floor we had worked in did. That is how most minimum wage breaches happen — not through greed but through inheritance, a practice passed down until nobody remembers to ask whether it was ever right.
If you run unpaid trials, the honest question is not whether they are legal in the abstract. It is whether, on the day, the person was being tested or being used. Everyone knows the answer to that before they are asked. The related rules that catch small employers most often are worth a look too — the minimum wage traps and getting employment status right between them cover most of what goes wrong.
Common questions
Are unpaid trial shifts legal in the UK?
There is no outright ban, but there is a narrow window. HMRC accepts that an unpaid trial of a few hours can be reasonable where it is genuinely part of recruiting for a real vacancy, is no longer than needed to assess ability, and the person is observed throughout. Outside that window the trial starts to look like work, and the minimum wage becomes payable. The factors HMRC weighs include whether the tasks have value to the business beyond testing the candidate, and whether unpaid trials are effectively part of how the business is staffed. Trials spanning more than one full shift are very unlikely to qualify.
How long can an unpaid trial shift last?
There is no fixed statutory limit, which is why the question causes so much trouble, but the direction of HMRC's guidance is clear: the longer it runs, the more likely the minimum wage is due. A short observed task lasting well under an hour is rarely a problem. A few hours may be defensible if the person is genuinely being watched and assessed throughout. Anything extending across a full shift, and certainly across more than one shift or several days in a real working environment, is likely to create an entitlement in all but very exceptional circumstances — especially in sectors paid at or near the minimum wage.
What can HMRC do if you got trial shifts wrong?
HMRC can issue a notice of underpayment requiring you to pay the arrears, calculated at current minimum wage rates rather than the rates in force when the work was done. On top of that comes a penalty of 200% of the arrears, subject to a minimum of £100 per notice and a maximum of £20,000 per worker. The penalty is reduced by half if the arrears and 50% of the penalty are paid within 14 days. Employers found to have underpaid can also be publicly named by the government, which for a local business is usually the more damaging consequence.
Do you need a right-to-work check before a paid trial shift?
Yes — treat it exactly as you would any other first shift. If you are paying someone to work, they are working for you, and a right-to-work check should be completed before they start rather than at the end of a probation period. The same logic applies to your other obligations for that shift: they are covered by your employers' liability insurance, health and safety duties apply to them, and the hours accrue holiday entitlement. Doing the check first is also simpler administratively, because it means a successful trial can convert straight into a job offer without a gap.
