Your work questions answered: Can bars and restaurants still offer ‘unpaid trial’ shifts?

My 18-year-old daughter is a college student who started to work as wait staff in a local pub. She did two unpaid trial shifts and was taken on for weekend work.

She was frequently sent home if it was quiet and not paid for the remaining shift. At Christmas she informed them that she could not work three days due to another commitment but was available for the remaining two weeks of her college holidays. She was not given any more shifts and not told she was no longer needed and was eventually removed from the work WhatsApp group.

She recently started a summer job with a different employer, again after two unpaid trial shifts. This appears common in the bars and restaurants where we live. I am upset that she and other students are treated so unfairly. She did not want to report the first employer but this no contract, no explanation of hours, ‘slow fire’ behaviour seems common. Is there anything I can do to report it?

We spoke to experts in employment law and human resources to get their perspective on this query.

Although illegal, and thankfully a dying problem, it is not shocking that unpaid trials or non-existent contracts are still happening, according to Anne O’Connell, principal of employment law firm AOC Solicitors.

This reader’s daughter should have received 80 per cent of the minimum wage (€10.16 per hour due to her age) for her trial shifts, she says, with no exceptions.

Even if a worker agrees to an unpaid trial in the hopes of securing employment, from the employer side, offering an unpaid trial is unlawful.

“It’s just too easy a breach, to just not pay somebody. That’s a fact that you can’t change,” she says.

After securing her employment, this young woman should have received the written terms and conditions of her employment within five days, Ms O’Connell added.

This includes particularly relevant information, such as the minimum rate of pay, and the guaranteed hours.

‘That young worker has perfectly good reason to go back to her former employer and her current employer for what she is entitled to, and if it can’t be remedied, they have an avenue through the WRC to make a complaint’

—  Damien McCarthy, HR Buddy

O’Connell says a complaint could be made to the Workplace Relations Commission (WRC) under the Terms of Employment Act or the National Minimum Wage Act, which would result in an inspection.

“So the WRC can actually take them to court for a summary conviction and a fine,” she says.

A claim to the WRC could result in four weeks’ remuneration for the failure to provide the terms and conditions, she says. However, any such complaint must be sought within six months. An inspection can still be sought in this case, however.

WRC inspections, which involve documentation requests such as contracts, time sheets and payslips to ensure compliance can be a “nightmare” for employers.

Although unpaid trials or lack of employment contracts may have been common in the past, it is a dying practice, says

Damien McCarthy, founder and chief executive of consultancy firm, HR Buddy, described this reader’s query as “disappointing and shocking”. He says although indefensible, a minority of ill-informed employers may still believe unpaid trials are allowed.

Employers who offer unpaid trials are not only breaking the law but risk tarnishing their reputation, along with the reputation of Irish hospitality and tourism sector, he says.

[ Your work questions answered: Is an employer liable for a sports injury if they sponsor an employee team’s kit? ]

“It may be seen as an old-fashioned way of doing things that can be handed down through generations, but any employer that has sought advice would know that it’s completely illegal,” he says

McCarthy advises approaching the employer as a first port of call.

“That young worker has perfectly good reason to go back to her former employer and her current employer for what she is entitled to, and if it can’t be remedied, they have an avenue through the WRC to make a complaint,” he says.