Can a trial be part of an interview?

Angela had an interview at a local café for a job as a waitress. During the interview, she was asked to demonstrate her customer service skills and she served customers during the whole afternoon shift without a single issue. Some customers even came up to the café manager and complimented Angela’s friendly manner. Even though the café manager interviewing Angela could clearly see she demonstrated the skills needed within the first hour, they continued to require Angela to wait tables for the remaining 3 hours of the afternoon shift.

After the interview, Angela was told that they would get back to her at the end of the week. She was confident that she would get the job. On Friday, the manager called Angela, thanked for an excellent interview but said they offered the job to another person who had more experience than her. Angela then asked to be paid for the 3 hours that she worked during the trial. The manager said as it was a trial, it was unpaid, but this was not made clear to Angela at the time.

Who is acting in accordance with the law here? 

It is sometimes appropriate to ask job applicants to perform tasks during the interview process, so you can assess whether they have the skills needed for a job. For example, this could apply in cases where the applicant’s previous work experience used different skills, or to help you to compare the skills of several applicants. If you are using assessment tasks, they shouldn’t take too long and should genuinely assess ability to do tasks relevant to the job. You should tell applicants in advance about the assessment they will be doing. It is important that it is made clear to applicants that performance of any tasks is a part of the interview process and that the assessment is not paid or rewarded.

There is a risk that performance of the assessment tasks may be considered employment under some circumstances. This could include situations where it is unclear if the tasks performed were actual work or part of the interview, and/or the business has received financial gain from the tasks performed. Payment by money or reward (or the creation of such an expectation) makes performance of the tasks more likely to be viewed as employment.  For example, it is acceptable to ask a barista to make two or three coffees, or a waitress to service a table, but working a whole shift, or even a few hours, would likely be considered employment.

A skill assessment as part of a job interview should not be confused with a trial period or probationary period.  Trial periods and probationary periods can be part of an employment agreement between an employer and employee, and apply once employment has been offered and accepted.  If you are considering a trial or probation period, it is important to understand the difference between them and when and how they can be used.

For more information on trials and probation periods visit https://www.employment.govt.nz/starting-employment/hiring/interviews/

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