News and Publications

Employers need to be very careful about carrying out a work trial before offering employment.

The concept of potential new employees undergoing a ‘tester’ or performing tasks which will be part of their work duties is a commonly used practice. However recent case law indicates that if the person is carrying out any work that provides benefit to you as the employer – then tread carefully as it can cross the line and they can be considered an employee, and therefore must be treated lawfully as an employee.

If it is part of the recruitment phase and you ask them to serve a few customers or cup-up a few cows, make sure that it is clearly stated and that they understand it is still part of the recruitment process and the position is not definitely theirs. Our advice … don’t take the risk.

You can’t simply “see how they go” for a few days, then if you decide they are not suitable – advise them that the position is not theirs. Serious repercussions can come of this as they are effectively in a position of employment and could raise a grievance based on unjustified dismissal.

Carrying out robust recruitment practices will reduce the need to take the risk with these work trials. When recruiting create a list of appropriate questions to ask the job applicant, make use of an application form, conduct thorough interviews, and always carry out reference checking with previous employers!

Also a reminder – the 90 day trial period is only enforceable if the employee has signed their employment agreement prior to starting work. In addition you must give your new employee sufficient time to seek independent legal advice on their new employment agreement (we recommend 2-3 days) before signing.

If you have any questions or queries surrounding this area or any other employment matters – get in touch, we are only a call or an email away.