Unpaid Work Trials

Chris Stephens Excerpts

Wednesday 29th March 2023 Westminster Hall

[Stewart Malcolm McDonald]

Yes—and no, in terms of the Minister’s final point about there being a difference. The unpaid work trials contribute to the figure of £3 billion. I am not saying that the trials are worth £3 billion, but the study by the university concluded that that was part of the bigger £3 billion picture. I confess I do not think there has been an updated study. I do not know if the Government have anything to share with us this afternoon. I would be amazed if that figure had not grown since that study was done six years ago.

Among all the good will to try to stop this miserable exploitation, the Opposition and the Government arrived at different conclusions. I was of the view, supported by colleagues in the Opposition, that legislation was required —an amendment to the National Minimum Wage Act 1998—to outlaw the practice. The Government took the view that guidance was adequate, but it is not. It was proven not to be as recently as December last year in a court ruling. The ruling in Ms P Karimi and Ms C Patricio v. Fadi Ltd, published by His Majesty’s Courts and Tribunals Service on 2 December 2022, found that the claimant was entitled to the minimum wage for all hours worked during the trial period. Reasoning the judgment, the employment judge, Judge D Wright, stated that the

“legislation does not give explicit guidance”

as to how long these unpaid trial shifts may last.

An exploitation had taken place, whereby someone had worked in an unpaid trial, and the tribunals service determined that they should have been paid for it, but the judge said that the guidance is not sufficient on the regulation of work trials. I am not against work trials. I entirely support an employer’s right to say to someone, “Come in and show us what you are made of. Come in and show us that you actually have the skills and experience that you set out in the interview process.” What I do not support is exploiting people for jobs that do not exist, or for covering staffing shortages and doing so for 40 hours, as in the extreme examples that I mentioned at the start of my remarks.

Forty hours is an extreme and unusual example. What I thought I would find initially was that the norm would be two or three hours—half a shift or a morning. What I found more often than not was that the time was longer, and the physical experience of the unpaid work trial was demeaning. The number of people—mostly young people—who would work their unpaid trial shift and then just be left, not told whether they had a job, confused as to what was supposed to happen next, clearly tells us that better regulation of trial periods needs to be forthcoming from the Government. I do not think that that is too much to ask in this day and age. A fair day’s work for a fair day’s pay; it could even be said that it is a broadly Conservative value. It is something that even my colleague, the hon. Member for Glasgow South West (Chris Stephens) can rally around.

Let us be clear about what my proposed legislation was not; it was not about banning trial periods, and it did not concern itself with things like unpaid internships. Although I find them objectionable, I felt that would require its own piece of separate legislation. The aim of my proposal—the banning of exploiting people through unpaid work trials—remains an entirely just one.

[Chris Stephens (Glasgow South West) (SNP)]

I thank my good friend and constituency neighbour for giving way. There is another way of dealing with this issue. As my hon. Friend will be aware, the Government have been promising an employment Bill for the last six years. For some reason it is yet to become a reality. Does he agree that if the Government were to put forward an employment Bill, that would allow both of us to table amendments to address this topic?

[Stewart Malcolm McDonald]

With all things around employment law, in my party I defer to my hon. Friend. He has a strong history of standing up for employment practices and a knowledge that surpasses mine when it comes to the detail of modern-day employment law.

To conclude my remarks, I think the aim of my Bill —although I suppose it is now an ex-Bill—was entirely just and reasonable. It has been shown in the time that has passed since the falling of that proposed legislation that the guidance the Government produced, although perfectly sensible and reasonable, is not enough. I still get emails, as do many Members from across the House, from people who are being exploited by unpaid work trials or, worse, fake work trials for jobs that do not even exist.

I will end with the example of a young Glasgow student, Ellen Reynolds, who petitioned Parliament a few years ago. She successfully gained the number of signatures required to have a debate in Westminster Hall on an unpaid trial shift that she was asked to take part in. There was no guarantee of a job at the end of it and she even had to buy here own uniform to take part in that unpaid trial shift. That is not an uncommon experience. All across Britain today, there are people working a couple of hours, half a shift, or half a morning —whatever it is—to show what they are made of, and they are not being paid for it, and they should be paid for it. They are not getting expenses for it, and they should be, at the very least.

We have a quirk of the system here, where exploitation is rife. I would bet that every person who can hear the sound of my voice knows somebody who has gone through an unpaid work trial at some point in their life, especially if they know groups of young people. The Government and this House have a duty to bring this exploitation to an end. That would not cost industry enormous amounts of money. It would bring in a bit of regulation that is right and proportionate. It would give some dignity to applicants, and some dignity into the workplace that is currently missing.

This is a small gap in the broad structure of employment law, but one that very much needs attention and could very easily fixed be with an amendment to the National Minimum Wage Act 1998. When the Minister gets to his feet today, I suspect he will not be able to furnish the House with new legislation, but I hope he will be able to say something positive on statutory changes to end the exploitation of unpaid work trials and closing that loophole, which at the minute means that people do not get a fair day’s pay for a fair day’s work.

--- Later in debate ---

[Chris Stephens (Glasgow South West) (SNP)]

It is a pleasure to see you in the Chair, Mr Hollobone, and to follow the hon. Member for Strangford (Jim Shannon). I hope he enjoyed his birthday celebrations at the weekend; I noticed that he was a social media sensation, with all the well-wishers wishing him a happy birthday.

I congratulate my good friend and constituency neighbour, and fellow left winger—I use the definition loosely—my hon. Friend the Member for Glasgow South (Stewart Malcolm McDonald) on securing this debate on an important issue that affects far too many people in these islands. My good friend talked about one of the more extreme examples, the tea company Mooboo, but he undersold what was going on at that particular workplace. That situation really did go from the bizarre to the ridiculous. I recall that when this story hit the headlines, myself and my good friend were actually sitting next to each other in the Chamber of the House of Commons on a Thursday morning at business questions—the Minister was usually at business questions in those days—as we discussed this great matter.

Those of us who were contacting Mooboo tea on the social media platform Twitter were finding ourselves blocked for asking why unpaid work trials were happening in that workplace. Members of the pubic who were asking Mooboo, “Why are you blocking Members of Parliament for asking basic questions?”, were finding themselves blocked. It was getting to the stage where Mooboo was blocking more people than it had followers. It was one of those ridiculous situations. Even journalists were asking Mooboo those questions and finding themselves blocked, until Mooboo relented and started to engage with Unite—Bryan Simpson, who is a fantastic trade unionist and a constituent of my hon. Friend the Member for Glasgow South, and who does great work in organising trade unions in such areas, where exploitation takes place.

I want to make it very clear that the SNP is still calling on the UK Government to ban exploitative unpaid work trials and to protect workers, but we should not have to wait for the Government to act. As I alluded to in my intervention, we have waited six years for this employment Bill to appear before us. In 2017, the Government said they would bring forward an employment Bill to ban exploitative practices that were happening in the workplace, and then we were told, “Well, Brexit’s taken over.” Recently we have been told, “We’ll bring forward an employment Bill if there’s sufficient parliamentary time,” but that does not stop them introducing immigration Bill after immigration Bill. They can find parliamentary time for that, rather than for the very real issue of the exploitative practices that are happening in far too many workplaces across these islands. Will the Minister update the House on when we will finally see an employment Bill tabled by the Government to address unpaid work trials and all the other issues that come with it, which I will come to?

As my good friend, my hon. Friend the Member for Glasgow South, said, he introduced an Unpaid Trial Work Periods (Prohibition) Bill in July 2017. Guess what, Mr Hollobone—I know you will be shocked when I say this—it was talked out by a Minister. How many private Members’ Bills have been talked out by a Minister? I hope that we will review how private Members’ Bills are put forward in this place and that we stop the practice whereby Ministers are allowed to keep talking until 2.30 pm on the button, when the Bills disappear. That is really disappointing, and that view is shared by others across the House.

My hon. Friend has led in a number of debates and been a consistent campaigner on unpaid work trials. I hope that the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders), and indeed the Minister, will praise him for his work in shining a light on these issues.

In response to a written parliamentary question from my hon. Friend the Member for Glasgow South about legislative proposals, the UK Government said:

“Existing legislation already bans unpaid work trials that are not part of a legitimate recruitment process”,

yet he has given example after example, as did the hon. Member for Strangford (Jim Shannon), of unpaid work trials happening all over the economy and not being part of a recruitment process. As my hon. Friend and constituency neighbour said, they are being used to deal with staff shortages or fill in for people who have been off sick, which is a scandalous practice. Then there are those who are having to buy uniforms to go to unpaid work trials, which is an absolutely ridiculous practice—I hope the Minister noted what my hon. Friend and the hon. Member for Strangford also said about that. The Minister will need to answer for how we can deal with that kind of exploitation, because that is what it is.

As my hon. Friend said, trial periods can be a legitimate way to assess a candidate’s skills and suitability. They also give individuals the opportunity to assess whether a workplace suits them, which can be just as important. I note that the Department for Work and Pensions is trying to force people to take up more hours, and there are issues in relation to that. However, if an employer offers someone a trial period, it should be paid. There should also be feedback. Many examples have been given of unpaid work trials where nobody hears anything afterwards—whether it is a day, a couple of days or even a couple of hours, they do not hear anything from the employers. That practice needs to end. Perhaps an employment Bill could deal with some of that.

It is interesting that the UK Government have confirmed that unpaid working time, which can include unpaid trial shifts, was a factor in 29% of cases when 208 employers were named for failing to pay £1.2 million to around 12,000 workers, and ordered to pay £2 million in penalties. If there is adequate legislation in place, and the practice is still happening to the degree outlined by my hon. Friend and the hon. Member for Strangford, perhaps there is an enforcement issue.

Perhaps the Minister can tell us what enforcement is taking place within Government to ensure that unpaid work trials are not exploitative. Perhaps he could start by telling us how many vacancies currently exist in the national minimum wage compliance unit. If we had more workers employed by the state to enforce the national minimum wage, as the Government said in their parliamentary answer to my hon. Friend—if we had more enforcement officers—perhaps we would find out that the practice is as the two hon. Members suggested: still widespread, and still happening in too many workplaces.

The UK Government could have supported my constituency neighbour’s private Member’s Bill, or they could have brought in their own legislation. Perhaps the Minister will tell us what legislation is proposed and what timetable will be allowed for an employment Bill. We might not agree with every single provision in that employment Bill, but it would give every single Member of the House an opportunity to raise other issues, put forward amendments and deal with this issue.

[Stewart Malcolm McDonald]

My hon. Friend speaks to an important issue that he touched upon earlier, which is the practice of talking Bills out. I got an assurance from the then Minister that the Bill would not be talked out, and that it would be given a fair hearing and allowed to go through the process, but he then rather dishonourably did the opposite of what he had told me. We ended up with the Bill not having a fair hearing in the House, and not being given the proper readings that it ought to have been given as a Bill from a Member of Parliament. The result is that we are back here six years later, discussing the same problem.

[Chris Stephens]

I thank my hon. Friend for that intervention. As I recall, it might very well have been in the debate on his private Member’s Bill when the then Minister rose to his feet and said, “I will be concluding my remarks at 2.30 pm.” That was at the beginning of his remarks. That is a completely scandalous way of dealing with it, but my hon. Friend is right. We have had assurances before that Bills would not be talked about and then, lo and behold, on the day that the Bill is up for discussion, that is exactly what happens.

We firmly oppose this practice. Because of the sectors of the economy that my hon. Friend referred to, we also oppose the inappropriate use of zero-hours contracts. Sometimes they go together, where there is an unpaid work trial for a zero-hours contract job. They are both exploitative practices. These non-standard types of employment that offer workers minimal job or financial security really have to end, particularly in a cost of living crisis. If the Government are really serious about helping people to earn more money, they need to put forward legislation to stop unpaid work trials and exploitative zero-hour contracts.

[Jim Shannon]

When that Bill was introduced approximately six years ago, we anticipated that it would go through Westminster and address this anomaly. Does the hon. Gentleman, like me, feel aggrieved—I am sure he does—that, in the six years since this legislative change, people have been exploited and thousands have lost out on what was rightly theirs?

--- Later in debate ---

[Chris Stephens]

I agree.

I will remind the House why the promise of an employment Bill came about: it was because of the Taylor review. It was the Government’s own task. Matthew Taylor reviewed the working practices taking place across these islands, and the Taylor review listed a whole series of recommendations, many of which have still not been dealt with through legislation. If the Government are going to ask people to carry out that sort of work, we would expect them to back it with action. As the hon. Member for Strangford said, it is quite extraordinary that they have refused to do that.

The Scottish Government and the other devolved Administrations can do their bit, but they can do only so much, because employment law is reserved to this place, unfortunately. I would suggest that if employment law was devolved, including to the Scottish Parliament, work practices across the board would be a lot fairer.

I am conscious of the time. Let me end by saying that if the Government viewed trade unions as a key social partner in this country, these sorts of practices would come to an end in the workplace. I wholly support what my constituency neighbour, my hon. Friend the Member for Glasgow South, is trying to do in this area.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Business and Trade (Kevin Hollinrake)]

It is a pleasure to speak with you in the Chair, Mr Hollobone. I congratulate the hon. Member for Glasgow South (Stewart Malcolm McDonald) on introducing this important debate, and on his persistence. I think it is his seventh year of talking about this issue. He rightly feels strongly about it. He, like me, the rest of Government and probably every parliamentarian, absolutely believes that people who are at work should get paid the national living wage. I am delighted to be the Minister responsible for national living wage policy and workers’ rights.

Broadly, I agree with the points the hon. Member made. As others have said, if employers are engaging in the behaviour to which he referred—I accept that there is some evidence that some are—that is a scandalous practice. It is absolutely our case that all workers should be fairly rewarded for their work. Most people think that. Who would not agree with the point that a fair day’s work should mean a fair day’s pay? We are all on the same page on that.

We are also all on the same page on a related and very important point. As Minister responsible for national living wage policy, I am pleased to see the largest ever increase to the national living wage: a 9.7% increase to £10.42. That applies from Saturday. It is great to see it go over that £10 mark. Some 2.9 million people across the country will benefit from that measure, including 210,000 in Scotland and 160,000 in Northern Ireland. It is a very welcome move.

We should pay tribute to the vast majority of businesses and employers who—I think we all agree—are decent, do the right thing and do not engage in these scandalous practices. It is really important that we reiterate that, as well as the fact that lots of businesses are already struggling in the cost of living crisis, not least because of high energy bills, for example. They are suffering because of numerous cost pressures, and their paying this increase in the national living wage will not only affect the people on the bottom rung of the pay ladder, but have a knock-on effect on others in their workforce. We are determined to build the high-skill, high-wage economy that most people would like to see.

We have further ambitions. We want the national living wage to reach two thirds of median pay by 2024. That remains our ambition. It is the right thing to do. We are putting in place other measures that reinforce our point that we are absolutely protecting and indeed strengthening workers’ rights. The hon. Member for Glasgow South West (Chris Stephens) made an interesting point about finding parliamentary time; we are effectively finding parliamentary time for a number of pieces of legislation, including six private Members’ Bills for which I am personally responsible. Those Bills include measures to ensure workers get full allocation of tips and service charges; to protect neonatal care for new parents who have difficulties with a newborn, ensuring more leave—up to 12 weeks; to entitle everybody to at least a week’s carers’ leave, which could help many people in the workplace look after dependent relatives; and to ensure redundancy protections pre and post maternity, which, again, is a welcome change.

A further change, and a key measure in the Taylor review, to which the hon. Gentleman referred, is the right to request predictable terms and conditions. It will give people on, for example, zero-hours contracts the right to request predictable hours. We support legislation on that, and on making flexible working something that people have the right to request on day one. Those are all things that we are doing to strengthen workers’ rights and make the workplace more attractive.

[Chris Stephens]

I have been listening to the Minister very carefully, and I welcome what he says about the right to request, but a right to request does not necessarily mean that the right will be given. Will the Minister talk about how he intends to enforce that legislation, and increase enforcement around unpaid work trials?

[Kevin Hollinrake]

I do not want to get too distracted from the issue at hand, but I am happy to address that point in detail afterwards. We think those measures strike a balance. The recommendation from Matthew Taylor was not that there be a right to insist; it was the right to request. The employer could reject that request only on one of eight grounds, and in doing so, has to adhere to a process. We think that strikes a balance and meets the needs of businesses. For example, businesses can refuse a request in order to ensure that they have the right customer service availability and are not put under an undue burden. Those criteria have been set out, and I am happy to have that discussion with the hon. Member after the debate.

On the issue that the hon. Member for Glasgow South raised, there are two things that the Government would question about his policy: is it necessary, and what is the extent of the problem? It is important that we reflect the actual extent of the problem. He said that there is £3 billion of unpaid work; clearly that is a different issue. Following my intervention, he clarified that unpaid work trials are an element of that. The figure of 29% is also about unpaid work; the hon. Member for Glasgow South West said that among the 29% of employers that use unpaid work, work trials were a factor. The extent of the problem is not clear. I would describe people who are abusing the system as rogue employers, rather than something to benchmark.

Anybody who is defined as a worker should receive the national living wage. We updated the guidance in 2018, probably prompted by the work of the hon. Member for Glasgow South. The guidance is clear on the time that someone is allowed to have a work trial for. It says:

“in the Government’s view an individual conducting work in a trial lasting longer than one day is likely to be entitled to the minimum wage in all but very exceptional circumstances”.

Employment tribunals, for example, have a basis on which to make a judgment, and there are other bases.

--- Later in debate ---

[Kevin Hollinrake]

I thank the hon. Gentleman for all the good work he does in this House. In all the debates he speaks in, he is a champion for doing the right thing. As he said, we have been on the same side of the fence in debates on many occasions, and I am sure that will continue despite my ministerial position. I will come back to both of those points shortly.

Six different criteria apply in deciding whether an unpaid work trial is appropriate. The first is the length of time. The trial should be no longer than a day. Observation is another: is the employer observing, or is somebody just working unobserved? Other criteria relate to the nature of the work, and the value to the employer—is there a value to that work? That would be inappropriate. If the worker is observed, the work would have less value, because somebody has to observe them, and they might as well be doing the work themselves. All those things are taken into account in judging whether that shift should be paid.

There are reasons for having an unpaid work trial; for example, a teacher might be required to do a model lesson. It might be appropriate to ask teachers who are being interviewed to show what they would do in the actual situation. It would not be right to ban the practice altogether.

On having more specific guidance, which the hon. Member for Glasgow South mentioned, the problem is that being too specific in guidance could result in a race to the bottom by some employers—something that he is looking to clamp down on. If we said, “This categorically is the perimeter of work trials,” rogue employers may well take advantage. There needs to be a balance of judgment, rather than exact criteria.

The Government think that work trials can be a legitimate recruitment exercise at times, which is why we are not legislating in this area and do not intend to. I know the hon. Member disagrees, and I respect his opinion, but we do not think it is right to legislate further in this area. What we already have strikes the right balance.

[Chris Stephens]

On the one hand, the Minister says that the Government do not collect data, and on the other, he says that legislation is not necessary. That seems a bit confusing to those of us in the House who study these matters. Before the Government decide whether to legislate, would it not be better to do some investigation into the root of the problem to see how widespread it is?

[Kevin Hollinrake]

Of course, we will always look at information and evidence. As parliamentarians, we get information and evidence from lots of different sources, but we tend to work by seeing where there is obvious detriment and therefore loopholes that we need to close. I do not think it is practical for the Government to look at every single problem and then decide where to legislate; it is usually the other way round. I think we disagree on that, but we will always look at information. If the survey was updated and specified unpaid work trials as an issue, the hon. Gentleman would have a more compelling case.

On uniforms required for a place of work, deduction of the cost of the uniform should not take a person’s earnings below minimum wage. If it did, the employer would be guilty of an offence under the National Minimum Wage Act 1998. It can be appropriate for an employer to say that there is a uniform that an employee must wear, at the employee’s cost, but that must not take that employee below the minimum wage.