News in brief - January 2019

Unpaid work trial may attract minimum wage

The Department for Business, Energy and Industrial Strategy (BEIS) has updated its guidance on calculating the minimum wage to include unpaid work trials.

The updated wording sets out guidance for employers who, as part of their recruitment process, may use unpaid trial periods to establish whether the candidate has the skills required for the job. It notes that often such a practice will be a legitimate means of carrying out a recruitment process. However, in some instances the candidate will be asked to perform tasks for which the national minimum wage (NMW) or national living wage (NLW) should be paid.

The guidance highlights that current legislation does not define a “trial work period” and sets out factors that may be taken into account when considering whether a person should be paid. These include: whether the trial is genuinely for recruitment processes; whether the trial length exceeds a reasonable amount of time that an employer would need to assess the individual’s ability in the role; whether the tasks carried out add value to the employer beyond testing the candidate; and the extent to which the individual is observed during the trial. A key consideration, it says, is that the longer a trial period continues, the more likely it is that it will result in a contract to provide work meaning that the NMW/NLW is due.

Checking emails out of hours, is the firm’s data secure?

Employees who check their work emails on personal devices outside of office hours could be breaching GDPR. Research carried out by Insurance2go found that many participants used their personal devices to conduct tasks such as answering work emails while on their commute, on holiday or at the weekend. While 14 million employees use a second phone for work-related activities, 18% use their own device because it is better than their work device and 14% consistently use their personal device for ease and familiarity.

Despite the number of people using their personal devices, the report notes that such activity could be breaching GDPR legislation. In particular, the GDPR requires businesses to ensure that any work-related data stored on its employees’ personal devices is as secure as the information kept within its own servers.