The Supreme Court clarified the procedure for admitting applicants for trial work and provided clearer instructions and restrictions to employers regarding using trial work in the process of evaluating candidates.
Trial work is not regulated by the Employment Contracts Act, but it is a fairly common practice that continues to cause uncertainty. In its recent decision No 2-20-5834/36, the Supreme Court found that until an employment contract is signed, the employer has the right to, among other things, assess the work skills of the candidate. Practical tasks, tests, etc. aimed at determining the candidate’s skills should generally be limited to simulating a short-term work situation in the presence of the employer. According to the Supreme Court ruling, a situation where the candidate performs work for the employer as part of pre-contract negotiations or “trying out the work” is not acceptable, especially if the candidate performs work tasks (assignments) independently without the presence of the employer. Pre-contract negotiations should be limited to the initial identification of the applicant’s skills and must not involve participation in unpaid work.
If during the pre-contract negotiations, the applicant wishes to perform the tasks normally performed during employment, it should be presumed that the parties have entered into an employment contract. The employer can refute this presumption by proving that the candidate was merely acquainting themselves with the work arrangements or the performance of work and did not perform any actual work tasks or assignments. The employer can also prove that the applicant was aware of and agreed to have their work skills examined before the employer would decide whether or not to enter into an employment contract.
Thus, when admitting applicants for trial work, it is important to first explain to the candidate (preferably by email) that the trial constitutes an assessment of skills before employment. It should also be explained that trial work does not imply employment and that the employer will announce their decision to sign an employment contract only after the trial work has been successfully completed.
