Effectively Using a Pre-Employment Trial

By Russell Drake


Many Employers have unsuccessfully attempted to use pre-employment trials to assess the skills of a potential Employee, only to fall prey to a successful personal grievance claim at a later date when terminating the Employee under a 90 Day Trial Period.

For many roles, assessing the skills of an Employee within a recruitment process, can only be effectively achieved by putting the candidates through an in-depth, on-the-job work trial, prior to providing an offer of employment. Such trials will generally be of less than one day’s duration and would be unpaid. However, Employment Case Law reinforces commitments made to the Employee during the trial period may make the individual “a person intending to work” thereby providing them with grievance rights if the trial does not result in an firm job offer or may invalidate the 90 Day Trial Period if an offer of employment is subsequently made and accepted.

The Employment Relations Authority have gone so far as to order an Employer to pay an Employee ‘at least the minimum wage’ for each hour completed during the pre-employment trial period where they have believed that the nature of the duties completed constituted ‘work’.

Therefore, if you have a genuine requirement to implement a pre-employment trial, and still leave your options open to apply a valid 90 Day Trial Period for the successful candidate, a number of provisions will need to be complied with, including:

  • Ensuring a work-sample test is a core component of the recruitment process
  • Having the candidates sign a declaration acknowledging that the unpaid assessment does not constitute work and that the completion of the work-sample assessment does not imply an offer of employment is to be provided
  • Ensuring the functions undertaken are not directly the tasks completed by an Employee
  • Ensuring the structure of the work-sample resembles assessment not employment
  • Ensuring that the duration of the assessment is only that sufficient to assess the required attributes

Work samples assessment, or pre-employment trials, can be invaluable in determining if the candidate has the required (claimed) skills or the potential to acquire those skills, however these must be used with caution given the obvious liabilities associated with such practices.

If you are contemplating the use of a pre-employment assessment within your work practices and are unsure how to apply this without creating a potential liability, please feel free to contact us.

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