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Pre-Employment Trials

Published 08 Aug 2017

We are often asked whether it is legal to ask job candidates to undergo a pre-employment trial prior to being offered a job in the business. The answer is yes, but it is not without risks.

A hair salon was taken to the Employment Relations Authority (ERA) by an employee following a dismissal under the 90 Day Trial Period and a pre-employment trial.

In this case the applicant for a position in a hair salon was asked if she was willing to undertake work 'as a volunteer'. The candidate, after attending the interview, agreed to work as a volunteer for the day to test her suitability for the role. The arrangement was confirmed by email and the 'test' day took place.

On the day the candidate assisted with cleaning, tea and coffee duties, and shampooing hair. At no stage did the parties discuss being paid for the pre-employment test, nor was it ever requested.

Following that day the applicant was offered the job with a 90 Day Trial Period included, which she accepted.

When things didn't work out in subsequent weeks she was dismissed under the 90 Day Trial Period provision, whereupon she raised a personal grievance against her employer claiming unjustified dismissal and disadvantage, specifically on the basis that the work undertaken that day for the pre-employment test meant that she was an existing or previously employed person and therefore the 90 Day Trial Period was not applicable to her.

The ERA upheld that the trial day was a voluntary pre-employment test, meaning that the candidate was not already an employee of the business when the employment agreement was signed. Hence the trial period was valid and the dismissal was justified. They rejected all other claims of the employee.

So, it is legal and enforceable to have an unpaid pre-employment trial even prior to a 90 Day Trial Period. However, if you do plan to undertake this practice we would strongly recommend the use of a written agreement (Candidateship Agreement) for this.

When engaging a volunteer or intern for any reason an agreement should be signed by both parties to confirm the understanding.

Whether it is an internship for a project, or just half a day as a pre-employment trial, ensure it is documented. While a document alone will not grant exemption from a claim or personal grievance, it does go a long way in proving the intention by both parties.

In summary our advice for performing pre-employment trials is to use an agreement or at least document the arrangement explicitly stating that there will be no payment, and that there is no offer of employment being made. Keep the work trial short in duration. Keep the tasks requested of the candidate relevant but try to minimise any commercial benefit to the business.

For our Candidateship Agreement, Volunteer Deed and a guide please see our Volunteers eBook. This is available as a download for members from the Library on the Dashboard of the Employers Toolbox ( or for purchase by non-members from our website here.