Unpaid Trial Shifts

– in the Scottish Parliament on 23rd January 2018.

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Photo of Linda Fabiani Linda Fabiani Scottish National Party

The final item of business is a members’ business debate on motion S5M-08211, in the name of Rona Mackay, on unpaid trial shifts. The debate will be concluded without any question being put.

Motion debated,

That the Parliament welcomes the Private Members Bill introduced by Stewart McDonald MP in the House of Commons to ban unpaid trial shifts; considers that this practice infringes workers’ rights and notes calls for it to be stopped; understands that young people are the group most likely to face exploitation; notes the view that, whether permanent work is offered or not, they should be paid for their work during a trial period; commends this bill, and considers that it will make a real difference for people throughout Scotland, including in Strathkelvin and Bearsden, seeking employment.

Photo of Rona Mackay Rona Mackay Scottish National Party

I am pleased to bring this debate on unpaid work trials to the chamber and I thank everyone from across the chamber who signed the motion.

As most members know, my colleague at Westminster, Stewart McDonald MP, has introduced a private member’s bill on this issue, but because it affects people from across the United Kingdom, he particularly wanted a debate in the Scottish Parliament to reflect cross-party and cross-border support for this serious issue. Those supporting the bill include the Scottish Trades Union Congress, the National Union of Students, the better than zero campaign, and the

Daily Record

, to name but a few.

The Unpaid Trial Work Periods (Prohibition) Bill had its first reading in July last year. Since then, it has gathered cross-party support at Westminster and the second reading is due to take place on 16 March this year. It has gathered nearly 100 responses and 56 per cent of people had either done a trial period or knew someone who had been offered one. Many respondents referred to the trials as demeaning, soul destroying, humiliating and desperate.

An independent report shows that unpaid work trials amount to £1.2 billion in missing wages. Let me say at the outset of the debate that unpaid work trials are not the same as work experience for students or pupils, which I think we would all agree is invaluable in helping young people to learn about the working environment and in helping them in their choice of employment.

The bill is about the complete and total exploitation of people—predominantly young people—who are doing a job that they should be paid for. This is about employers giving false hope to many people who are desperate for a job—to people who are desperate to feed their families—in a country where bankers get bonuses and directors of failing firms such as Carillion get massive pay-offs, but unemployed young people get cheated of a fair day’s pay.

This is about the shameless exploitation of people for free labour and, as we know, the shifts are often used to cover staff shortages and save money. However, we should recognise that many responsible employers already pay their trial shift workers and that should be applauded.

Photo of Neil Findlay Neil Findlay Labour

I ask that we be careful about the language that we use, because I do not think that employers should be applauded for paying; it should be absolutely normal that people get paid for the work that they do.

Photo of Rona Mackay Rona Mackay Scottish National Party

I accept that point. The member is clearly right about that.

This is Scotland 2018, not Victorian Britain. I will give a few examples of what we are talking about here. There was the headline case of a young man with Asperger’s syndrome being dumped by B&M after 15 hours of free work. He was on the work rota for the following weeks when, out of the blue, he was told to go. He said:

“If it was really because I couldn’t do that work, then fine, but they should have told me that during the work trial. I was led to believe I had the job.”

I find his treatment disgusting and cruel.

A chef proprietor of an upmarket restaurant in Edinburgh’s new town failed to pay hospitality staff for working interviews that lasted between two and four hours. Past and present staff members confirmed that the chef was using dozens of unpaid trial shifts per week to cover busy periods and was using desperate young workers as a free cleaning service. Here is my tip for him—pay your workers and stop exploiting young people.

Then there was the mother of a young man, who said:

“My son worked in a well-known bakery for six weeks trial, for no wages and no job. He eventually left.”

The size of the business does not matter when it comes to such exploitation. A leading discount supermarket is one of worst offenders; it admits to having 150 youngsters per store coming in for unpaid work trials across the UK. One girl said:

“I went to one of these and it is actually slave labour—they use you to get the shop ready for opening time and get annoyed if you make any mistakes, even though you haven’t been trained to do the job.”

Rachael, from my constituency in Bearsden, told me:

“I did two unpaid trials of five to six hours each for a local restaurant, who then strung me along for weeks with the promise of shifts before ending contact.”

It has to be said that the hospitality industry is a terrible offender. I am grateful to my friend at Unite Scotland, Bryan Simpson, who worked in the trade, for supplying me with some shocking statistics of some of the work practices in that industry and for informing me of the excellent campaigns being run by Unite, such as I’m not on the menu, which particularly addresses sexual harassment, which is rife within the industry.

Unite Scotland has launched the fair hospitality campaign with a charter that codifies the reforms required to transform the hospitality sector for the benefit of the workers within it. As well as getting rid of unpaid trial shifts, the reforms include the implementation of the real living wage and rest breaks, giving 100 per cent of tips to staff, providing paid transport after 12 am, an end to discriminatory youth rates and, crucially, trade union recognition.

Unpaid work trials are an outrage and can never be justified, but what can we as MSPs do about it? We can make sure that the MP in our constituency prevents Stewart McDonald’s bill from being talked out in Parliament and turns up to vote for it. Members of the public who are watching or listening to the debate can write to their MP and ask them to support the bill and can contact Stewart McDonald at Westminster to lend him their support. Above all, we must get the message out that, in 2018, working for nothing is simply not acceptable. I ask those employers who think nothing of asking young people to do that to stop and ask themselves whether they would want their sons or daughters to be treated like that. If it is not good enough for their sons or daughters, it is not good enough for anyone else.

Although there is much more to be said, I will finish now, because I am keen to hear members’ speeches.

Photo of Dean Lockhart Dean Lockhart Conservative

I thank Rona Mackay for bringing this important debate to the chamber.

In Scotland and across the UK, we rightly pride ourselves on the ease with which people can set up and run a business. It is easier to do that in the UK than is the case anywhere else in Europe. Partly as a result of that, employment across the UK is at a record high and unemployment is at a record low. High levels of employment are obviously good news for workers. However, the debate is about something that is not so good and that we need to address, which is the practice of having someone work for a prolonged period without receiving any pay on the basis of a so-called unpaid trial shift. That is simply not fair. Rona Mackay gave a number of good examples of the practice.

The problems that are associated with unpaid trial shifts are highlighted in the Middlesex University London and Trust for London report “Unpaid Britain: wage default in the British labour market”.

Photo of Clare Haughey Clare Haughey Scottish National Party

The member mentioned “prolonged” unpaid trial shifts. Does he agree that people should be paid for working for any length of time?

Photo of Dean Lockhart Dean Lockhart Conservative

If someone works in an employment situation for any period, they should absolutely be paid. However, as I will come on to later, there might be circumstances in which it is appropriate to have a brief trial period—however long it might be—to assess a candidate’s skills and suitability for a job, but that is not in any respect the same as the unacceptable examples that Rona Mackay highlighted.

The report highlighted the unacceptable features of the practice. As we have heard, as a result of the practice, a total of £2.1 billion is lost each year in wages, along with £1.5 billion in holiday pay. The practice of not paying a salary impacts on workers’ cash flow and has resulted in 23,000 people not being able to buy food when they need it.

The practice is clearly unacceptable. Employers should adequately pay their staff. Unpaid trial shifts should not be used to cover for inadequate workforce planning or as a way to secure labour on the cheap. One of the main challenges that we face in addressing the issue is that the law in the area is unclear. Work trials per se are technically not illegal in the UK. The Advisory, Conciliation and Arbitration Service has pointed out that the law is not clear on how long a trial has to be before it becomes work and therefore has to be paid.

I hope that, when we see the detail of the bill, we will find that one of its objectives is to provide clarity on when a limited trial shift may or may not be appropriate.

Further clarity on the law would be helpful, not just for employees but for legitimate employers who might want to assess, for a very brief period, the skills of a candidate who is applying for a job.

Photo of Rona Mackay Rona Mackay Scottish National Party

Does the member agree that, regardless of the law, employers have a moral obligation to pay their workers, no matter how long they work for?

Photo of Dean Lockhart Dean Lockhart Conservative

I agree that if someone is in a work or employment position they have to be paid—that is the law. What we are talking about are circumstances in which it may be appropriate to have a trial of the candidate’s suitability for that job.

The Deputy Presiding Officer:

The member is just finishing.

Photo of Dean Lockhart Dean Lockhart Conservative

Let me get straight to the point. There may be examples when a brief unpaid trial period could be legitimate, but only in very limited circumstances. One of the key questions that the bill will face is how to deal with how prescriptive or detailed any regulations should be in relation to whether trial shifts are appropriate in some circumstances. Other countries—Australia, for example—have introduced a principles-based approach. They have set out a number of principles that have to be adhered to if a trial period is to be recognised as legal. That is one avenue that the bill may pursue.

Let me conclude. Whatever guidelines or regulations are proposed, there is consensus on the general principle that workers should not be asked to work for any prolonged period without pay. They should be paid for any period beyond what is reasonably required for them to demonstrate their skills for the job. If an employer wants to assess a candidate’s suitability further after a trial period, they should employ the person as a casual employee for a probationary period and pay them as required under law.

In conclusion—

The Deputy Presiding Officer:

No—you have already concluded, Mr Lockhart.

Photo of Dean Lockhart Dean Lockhart Conservative

—I thank Rona Mackay for bringing the motion to the chamber.

Photo of Clare Haughey Clare Haughey Scottish National Party

I remind colleagues of my entry in the register of members’ interests as a member of Unison. I congratulate Rona Mackay on securing this important debate. I, too, pay tribute to my colleague, the MP for Glasgow South, Stewart McDonald, for his terrific work in his campaign to scrap unpaid trial shifts.

As a committed trade unionist, I have fought passionately against discrimination and unfair working practices throughout my professional life. I was proud to be a divisional convener in my workplace for Unison, the trade union that I am still a member of today. As a member of the Scottish Parliament, I have continued to be an advocate for the rights of workers. I used my first speech to criticise the pernicious Tory Trade Union Act 2016 and have the privilege of chairing the SNP Holyrood trade union group.

When we are made aware of issues such as the use of unpaid trial shifts, it is a real source of frustration that we cannot do anything about them, legislatively, in this Parliament, because employment law is still reserved to Westminster. The blocking of the devolution of those powers by Opposition parties during the Smith commission process has proven to be a significant miscalculation. However, that is an argument for another day. Stewart McDonald’s private member’s bill has the backing of MPs from all parties, and it is absolutely vital that they turn up in numbers and vote for its progression on 16 March.

Most people do not object to employers offering trial periods, as they are a legitimate way to assess a candidate’s skills and suitability, but it is at this point that I have to disagree with Dean Lockhart: any work trial should be paid. I would like to know how long Mr Lockhart would continue in a work trial before he expected to be paid. Would he like to advise the chamber? No.

Similarly, work trials give an individual the opportunity to assess whether a workplace suits them. What is objectionable is the fact that work trials are often unpaid. Most of us will be aware of the example of the tea firm Mooboo, which was found to be asking trainees to work for a full 40 hours for free—a full week’s work with not a single penny in pay. Rightly, there was widespread condemnation of the company, with a petition signed by more than 40,000 people urging it to drop the policy. Thankfully, it agreed to do that.

Since launching his bill, Stewart McDonald has heard from people who suspect that some businesses are using unpaid trial shifts to plug staffing shortages, with no intention of ever offering the applicant the job. That cannot be right and it should not be legal. If someone is required to work a trial period before securing a position, no matter whether or not they are offered the job at the end of it, they should be paid for that trial period.

Photo of Monica Lennon Monica Lennon Labour

I fully support Stewart McDonald’s bill and wish him every success with it in the House of Commons. I had a constituent in Hamilton who was in Glasgow for an interview and was asked to stay on. She ended up there for another couple of hours until her dad came and dragged her home, saying, “You’re not working here.” Does Clare Haughey agree that one solution might lie in local authority licensing rules? The practice of unpaid trial shifts seems to be particularly prevalent in hospitality, among young people working in hotels, bars and so on. Is there more that we can do with the powers that we have to address the issue at a local level?

Photo of Clare Haughey Clare Haughey Scottish National Party

I would support any strengthening of employment laws in Scotland to protect young people in particular because they are particularly vulnerable to being exploited in that way.

Stewart McDonald’s research showed that more than 55 per cent of people had either been offered an unpaid work trial or knew someone who had. Last year’s “Unpaid Britain” study estimated that £1.2 billion in wages remains unpaid in Britain each year. Unpaid work trials contribute to that figure. Unpaid trial shifts are clearly a prevalent practice. They are demeaning and exploitative, and legislation is required to offer people better protection in the workplace.

It is disappointing that no Conservative MSP has yet signed Rona Mackay’s motion, which is surprising considering that Theresa May insists that the Conservatives are the party of workers.

The Deputy Presiding Officer:

Ms Haughey is just closing.

Photo of Clare Haughey Clare Haughey Scottish National Party

Today, I urge Conservative MSPs to lobby their counterparts at Westminster to support Stewart McDonald’s bill.

With Brexit on the horizon, many of our workers’ rights could soon be eroded, so it is refreshing that a bill has been introduced that would extend protections, not cut them.

During my first speech in this Parliament, I said that

“fairness means access to fair work for fair pay”.—[

Official Report

, 2 June 2016; c 41.]

I fully stand by those remarks. No one should be deprived of a fair day’s pay for a fair day’s work, which is why I fully support the bill to ban unpaid trial shifts.

Photo of Johann Lamont Johann Lamont Labour

Usually, at this point, I say that I am very pleased to participate in the debate, but in these circumstances I am absolutely furious that we are having to have the debate at all. I congratulate Rona Mackay on securing the debate and on her speech, and I congratulate Stewart McDonald MP for taking forward his bill. His rigour in taking it forward and trying to build cross-party consensus has been admirable. Our own Martin Whitfield MP—a Labour MP in East Lothian—is a co-sponsor of the bill.

I am furious because, although I hear what has been said about its being a complicated area of law, unpaid trial shifts are morally unacceptable. On one level, we do not need legislation to tell us that it is unacceptable to bring people in, give them work to do and then not pay them at the end of it. The fact of the matter, though, is that something being morally unacceptable is clearly insufficient. All power to Stewart McDonald’s elbow for ensuring that the law is clarified in that regard. It is an important issue, and this is an important opportunity to shine a light on something that should be seen as utterly unacceptable. Sadly, for too many young people, it is seen as just the way it is.

Legislation already exists that is routinely ignored, particularly in the hospitality industry, in which there are issues about access to tips, access to proper pay and so on. Legislation is not enough, but it is a good starting point.

Although young people are disproportionately affected by trial shifts, precarious work is endemic. This is yet another element of an increasing number of workplace practices that systematically and unashamedly exploit people who seek work. We need only look at what happens in some companies when people are sent there by the jobcentre. Such companies have what is known as a revolving door—they know that people who are sent to them by the jobcentre will not last more than a fortnight, but their business model is based on securing labour that comes through without expecting to stay.

Unite the Union and the better than zero campaign have spoken about that practice and about the cynicism of companies that offer shifts but have no intention of giving somebody a job. Some companies—even if they do plan to give someone a job—see how many shifts they can get out of the jobseeker first. That should appal us all.

We must respond to the testimony of the young people from whom we have received briefings and to the plight of the many other young people whose voices are not heard but who are routinely treated in that way. The issue demands a response from this Parliament as well as from Westminster.

On the issue of precarious work, we are told that it is about choice but we all know that “Take it or leave it” is no choice at all. Too often, whatever conditions are placed on their work—whether it is trial shifts or no guarantee of work—young people are told that it is a matter of choice. We need to be careful not to elevate some of these work practices to the status of choice. One person in 100,000 might support a zero-hours contract as it is currently deployed as a matter of choice, but all the choice is on one side.

We should reflect that the issue is about the utter imbalance of power in the workplace. Good employers have resisted taking such measures and should be rewarded for good practice. We should denounce exploitation, but it is important to recognise that there are employers who do not behave in that way. We should also understand that the economy of this country cannot be predicated on very poor practices, with untrained staff doing a job in circumstances in which they get no reward or encouragement for working hard, despite their best endeavours. We want an economy that is fairer than that.

I very much support the legislative proposals, but we need to look at what we can do now. Exploitation should not be rewarded. No business that uses exploitative work practices should be given money by the Government or support by Scottish Enterprise or the other enterprise agencies. It should not be allowed access to the small business bonus if it exploits its workers


The Deputy Presiding Officer:

Can you come to a close, please?

Photo of Johann Lamont Johann Lamont Labour

As I have said before, we should not define any work that exploits young people as a positive destination. We know that we can do both things.

The Deputy Presiding Officer:

Can you come to a close, please?

Photo of Johann Lamont Johann Lamont Labour

We can support the legislation, but I ask the minister, in summing up, to confirm that he will be willing to look at how he can use his power not to reward bad practice but to eradicate it.

The Deputy Presiding Officer:

I remind members that there can only be one conclusion to a speech and that I asked for speeches of up to 4 minutes. I have been generous when members have taken interventions but time is running short.

Photo of Ross Greer Ross Greer Green

Like colleagues, I am grateful to Rona Mackay for giving us the opportunity to debate the issue in Parliament.

There have been some really exciting developments in Scotland in recent years, such as the living rent campaign against dodgy landlords and the better than zero campaign, which have been led by young people who are being exploited by an economy that is designed to take from them and give to those who already have more than they need. Those campaigns—particularly better than zero—have shown the power that young, exploited workers have when they come together not just in individual workplaces but as a movement to fight for their rights.

The better than zero campaign has had some huge wins, such as over the G1 Group, a notorious employer. That victory was achieved only after a campaign that included direct action, lobbying and negotiation. The campaign secured an end to staff having to pay for their own uniforms, an end to having spillages or breakages docked from their wages and an end to zero-hours contracts. Of course, the G1 Group tried to roll back from the promises that it had made, but it knows that young workers are ready to shut G1 down again if needed. That is exactly the kind of mass movement of workers that we need in an era of economic exploitation.

Nevertheless, that treats only the symptoms and not the cause. It is the responsibility of parliamentarians to treat the cause. The better than zero campaign should not have to fight so hard for basic justice for workers. The reason that it does is that the UK has the worst and weakest employment laws in western Europe.

Unpaid trial shifts are not clearly addressed in UK law at present. It is not enough to say that the law mandates employers to pay staff once a trial becomes actual work, because, as Dean Lockhart fairly highlighted, there is no black and white separation of the two areas. There is no clear definition of when a trial becomes work. Bad bosses love grey areas of the law where they can exploit often struggling or desperate people to maximise their own profits. That is exactly what Stewart McDonald’s proposed bill would, I hope, bring to an end, which is why it is backed by the better than zero campaign and the STUC.

We know about the link between low pay and no pay—the link between low-paid work and poverty. Those who are in low-paid work are often more likely to be in unreliable and temporary work, so they are far more likely to often be out of work entirely, unable to pay rent, put food on the table or cover heating bills. As MSPs, we are all familiar with that situation, as those cases fill our inboxes and appear at our surgeries every week.

In that position, someone is far less able to say no to unpaid trial work that has the potential to lead to paid work at the end of it. As organisations such as the Joseph Rowntree Foundation have repeatedly shown, that makes it near impossible for those people to break out of a cycle of low pay and no pay. The person’s energy is all spent looking for work and struggling to get by while they are out of work or in unpaid work. That puts all the power in the hands of exploitative employers and shows the red herring of its being a matter of workers’ choice. When someone is struggling to stave off eviction because they cannot cover their rent and is struggling to feed themselves and their family, what choice do they have when the potential for paid work is dangled in front of them?

The UK’s welfare system only makes the situation worse. As MSPs, we are well aware of the disaster that is universal credit, given that it takes over a month from making a claim to receive a payment. Furthermore, making the claim requires a lengthy and exhaustive application process for which significant amounts of evidence are required. Many people simply cannot afford to wait so long, so they take the risk of unpaid work in the hope that it will quickly become paid work. However, we have heard of many instances of unpaid work not resulting in paid work. Examples have been given by members, including by Rona Mackay, who spoke of the infamous case of the young man at B&M who was dangled along for a significant amount of time before being told to go home. Such people are left even further away from a pay cheque or any money at all than they otherwise would have been and are closer to, or deeper into, poverty.

We should be clear that it is all about maximising profits for the employer. Work creates wealth, and the expectation that the worker who creates that wealth will share in it should be the norm. However, that does not happen in the cycle of unpaid trial shifts. Surely, whether members rest at my end of the political spectrum or at Dean Lockhart’s, we should understand that that is wrong. I hope that MPs across the west of Scotland will support Stewart McDonald’s bill and that MSPs across the country will contact the better than zero campaign to see whether they can help to combat bad bosses in their area. Workers are the real wealth creators in our society and, in the UK of the 21st century, they deserve to know that they will receive fair pay for fair work.

The Deputy Presiding Officer:

I still have four members wishing to take part in the open debate, so I am minded to accept a motion without notice to extend the debate by up to 30 minutes, although I give due warning that the extension will be nowhere near 30 minutes.

Motion moved,

That, under Rule 8.14.3, the debate be extended by up to 30 minutes.

—[Rona Mackay.]

Motion agreed to.

I call Tom Arthur, to be followed by Jamie Halcro Johnston.

Photo of Tom Arthur Tom Arthur Scottish National Party

Thank you, Presiding Officer, and I promise that I will not take any more than four minutes, which is rare for me.

I thank my colleague Rona Mackay for bringing her very important motion to the chamber and I pay tribute to and thank my SNP colleague Stewart McDonald for his vigorous pursuit of the issue and introducing his private member’s bill

. All MPs in Scotland and, indeed, across the UK should get behind the bill, regardless of where they are on the political spectrum, as Ross Greer rightly highlighted.

I declare an interest as a member of the Musicians’ Union and as a former musician, although I do not know whether a musician can ever be a former musician. Where music leads, the rest of the economy tends to follow. I do not think that any working musician is not familiar with being asked to work for free. Indeed, musicians often view working for no pay as the only path to success. The Musicians’ Union surveyed its members in 2015 and found that 60 per cent—30,000 members—reported that they had worked for free. Interestingly, a research survey in 2016 by the Association of Independent Professionals and the Self-Employed and the Freelancer Club suggested that 20 per cent of respondents identified working for free as standard practice in their industry.

I highlight that practice because it has become the cultural norm and culturally acceptable. If young musicians or bands starting off are subject to an unscrupulous promoter or agent who encourages them to perform in certain venues or take on certain gigs for free with the promise of more paid work down the line, they are likely to accept that. However, it is very often the case that the work does not materialise, or the promised rates do not materialise. Our musicians have been familiar with that for quite some time. I pay tribute to the Musicians’ Union for its work not play campaign, which has been highlighting the issue for some time.

I will highlight another couple of points from the survey by the Association of Independent Professionals and the Self-Employed and the Freelancer Club, because there is some interesting data on those people who are working unpaid. The majority of the respondents to the survey—44 per cent—fit into the 16-to-29 age bracket. Shockingly, many of those freelancers had up to seven years’ experience in their trade. The issue therefore affects not just young, inexperienced people; people who have real skills and experience in their area are still working and not being paid. It is very telling that a significant proportion—67 per cent—were women. When we look at groups who are affected, we know the challenges that we face between having a more equal economy and addressing the gender pay gap. Given that we are celebrating young people this year, there can be no more appropriate year than this in which to seek to end unpaid trial shifts.

Dean Lockhart suggested that such shifts might have merit if they are undertaken for a limited period. To an extent, that is how the problem started in music. A culture develops and then expands, and it becomes the norm to end up with 20 per cent of people working—

The Deputy Presiding Officer:

Quickly please, Mr Lockhart.

Photo of Dean Lockhart Dean Lockhart Conservative

I have a very quick question. Does the member suggest that we ban all trial shifts on that basis?

Photo of Tom Arthur Tom Arthur Scottish National Party

There is an option to have a probationary period, which is perfectly legitimate. People can have such a period, in which they are paid a wage as anyone else would be and if, at the end of that period, they do not meet the requisite standards, action can be taken. Such laws already exist. People who work should be paid.

My final point is that the issue speaks to us about the broader fair work agenda. Another term that has been imported from the world of music into the general economy is “gig economy”, which is just a fancy way of describing insecure, low-paid and precarious work. With the challenges that we, as an economy, will face in future, with the rise of automation and the hollowing-out of middle-income and middle-skilled jobs, now is the time to strengthen workers’ rights. If we do not do so, we will face a future in which more and more people will be in a position that far too many musicians have found themselves in, which is one of insecure work and all the stress that comes with that.

Photo of Jamie Halcro Johnston Jamie Halcro Johnston Conservative

I am not going to make such a promise, for that reason.

First, I congratulate Rona Mackay on securing the debate and highlighting the cases that she did. I extend my congratulations to Stewart McDonald on introducing a private member’s bill in the UK Parliament on this important issue.

We have already seen a level of public debate around unpaid work trials, with some examples having come to light. Many of the instances that we have heard about trial shifts being abused are in the retail and hospitality industries, which are sectors that are represented disproportionately in tourism-focused economies such as the region that I represent. It is often a hidden feature of the economy, too. As Mr McDonald mentioned, we are often dealing with low-paid workers, people coming out of spells of unemployment and industries in which trade union membership is not commonplace. As a consequence, the abuse of work trials is most commonly perpetrated against the very people who are found at the sharp end of sharp practices in employment relations. It seems barely conceivable that it can take a month to assess someone’s suitability for a job.

Photo of Neil Findlay Neil Findlay Labour

Perhaps the member was going too fast for me there, but he seemed to suggest that he supported people organising themselves in trade unions. Why did his party bring in the Trade Union Bill?

Photo of Jamie Halcro Johnston Jamie Halcro Johnston Conservative

We are changing the subject slightly there. As the former general secretary of a trade union, I recognise the role that trade unions can play, but that does not necessarily mean that, in every case, trade unions are right.

It is true that many employers are moving away from the traditional 45-minute sit-down interview, with a rise in day-long assessment centres, practice tasks and more probing questioning now being seen as giving a better reflection of an applicant’s behaviours and abilities. However, in the case of unpaid work trials, the applicant—if we can use that term for someone who has effectively been working in a job for several weeks—is not just experiencing a rigorous interview but undertaking the duties of an employee in a workplace.

The cost can be considerable. Not only is a person deprived of an income for the work that they are undertaking; there is also the potential loss of opportunities that might otherwise have been taken up over that period. Throughout that time, the possibility of a job is continually dangled in front of a person—or perhaps more than one person is competing for the same position. At the end, the prospective employee might find himself or herself still unemployed. It is tempting to say that the applicant is then landed back where he or she started, but that is not the truth. In reality, they have been set back.

The law rightly limits attempts to restrict and bind people’s labour when businesses step beyond a level that is seen as legitimate. For example, restrictive covenants must be proportionate in order to be enforceable, as the courts recognise not only an individual’s interest but a public interest in not standing in the way of people taking on work.

Through the same lens, we can see the problem of individuals effectively being taken off the job market for a month, with no promise of any work. Some employers have pointed out that employees have resources expended on them during trial shifts—staff time, induction and so on—which they suggest make those shifts not particularly productive in a business sense, but that seems to miss the point. Even when an applicant is successful, the employer has offset the cost of the normal induction training that is a part of any job. That, too, is a clear disadvantage.

Mr McDonald’s focus on the area is commendable. There are certainly some details that require to be clarified in his proposed legislation, several of which he himself has highlighted. One is how earnings from a work trial will interact with out-of-work and other income-related benefits and, significantly, whether there will be a need to reapply if an applicant is unsuccessful. Another will be whether some flexibility may be found. We know instinctively that there is a difference between placing an applicant in a workplace for a few hours and placing them for a few weeks. I touched earlier on the fact that there is already a move among recruiters towards the sort of assessment processes that can take the best part of a day.

In any case, I am sure that I will be joining members from across the chamber in keeping a close eye on the progress of the bill, and I look forward to it being debated.

Photo of Ruth Maguire Ruth Maguire Scottish National Party

I thank my colleague Rona Mackay for bringing this important topic to the chamber. Thanks are also due to Stewart McDonald MP for his work in building cross-party consensus on the issue at Westminster, and I take this opportunity to reiterate my full support for his private member’s bill to ban unpaid trial shifts.

It is particularly appropriate that this debate is taking place during the year of young people because, as the motion points out, our young people are most likely to be exploited in this way. At the very beginning of their working life, young people who are ready and willing to work are being treated with contempt and disrespect and left disillusioned and disappointed about the world of employment. Such exploitation is indefensible. It takes advantage of young people’s desire and need for employment to manipulate them into working for free. Working for no reward is the very definition of slave labour and should have no place in a modern Scotland.

We will all have heard stories of exploitation happening on unpaid trial shifts, and I thank Unite and the STUC for their briefings in advance of today’s debate, which include case studies of young people who have been exploited through unpaid trial shifts. One girl describes doing two unpaid trial shifts, of five to six hours each, in a restaurant, with no job at the end of it and no remuneration. Another case study tells how a young man who did an unpaid trial shift in a local restaurant not only was not paid for his time but was just left behind the bar with no direction. The manager did not even speak to him. My own daughter once undertook a trial shift at a bar, only to be told afterwards that they were looking for someone with bar experience—something that she had pointed out in her application she did not have.

None of those examples is acceptable and the situation must change. Trialling people before hiring them is completely legitimate—that is what probation periods are for—but it has to be done fairly and respectfully. That means that, at the very least, young people must be paid for their time—whether they are offered a job at the end of the trial or not. More than that, it should mean treating them fairly and with respect throughout their trial. They should be given proper training and induction before being set to work and they should have frequent breaks, in accordance with the law. The employer should ensure that they are properly fed and watered and that, if they are working late hours, they get home safely.

Those things are not radical and do not place a great burden on a healthy business. They are simply about treating young people with common decency and basic fairness—something that I am sure no one in the chamber would disagree with.

The good news is that we can all play our part in changing things. As consumers, we have a lot of power. We can put pressure on businesses by refusing to give our custom to those that exploit young people.

Photo of Johann Lamont Johann Lamont Labour

I absolutely agree that we need to know where the examples of bad practice are and vote with our feet, but does Ruth Maguire agree that there are also things that the Scottish Government could do and that, as an organisation with money, it could use its authority to insist that such practices do not continue?

Photo of Ruth Maguire Ruth Maguire Scottish National Party

Everyone should do everything that they can, but unfortunately money talks, so we need to spend wisely, whether we are individuals or organisations.

As consumers, we can put pressure on businesses by refusing to give our custom to those who exploit young people through unpaid trial shifts and poor working conditions. Those of us in a position to do so can expose such businesses and make sure that as many people as possible know what is going on behind closed doors. We can encourage the young people in our lives to join a trade union and, as MSPs, we can work with local councillors to embed the fair hospitality charter within the required business practices of local licensing authorities.

As is the case when it comes to discussing the living wage or supporting flexible working, treating workers with fairness and respect is not just about being morally right; it is good for business, because workers who feel valued and supported will be more productive and more committed to their workplace.

Banning unpaid trial shifts is absolutely the right thing to do. I fully support the motion.

Photo of Neil Findlay Neil Findlay Labour

I thank

Rona Mackay for bringing a very important debate to the chamber and declare my membership of Unite the union.

The reality is that, in Scotland and across the UK, far too many people and their families are struggling because of low pay and job insecurity, and there are repeated attacks on their rights. I recently carried out a survey of hospitality and food sector workers in my area. Poverty pay, the failure to consult on shift changes, zero-hours contracts, companies taking tips, and staff having to find their own way home after working late are just some of the ways in which workers are being exploited or put in danger. I received comments back from people who were employed in a wide variety of workplaces, from Gleneagles hotel to J D Wetherspoon, Sports Direct, Ryman, Starbucks, Tesco and many others. There is a prevalence and normalisation of the use of unpaid trial shifts, which are among the most pernicious ways in which workers are being exploited, often by some of the biggest and most profitable businesses on the high street.

The number of companies that use the shifts is growing massively. Twenty-five per cent of the people who responded to my survey had been asked to do an unpaid trial shift, and 52 per cent were on a zero-hours contract.

People have mentioned the case of Craig Robertson. That young man’s auntie, who is one of my constituents, contacted me about his situation. People have said that he had to do three separate five-hour shifts at B&M in Wishaw. B&M refused even to write back to me after I wrote to it to ask what had happened. If it is willing to exploit a young man with Asperger’s syndrome, it makes us wonder what else it is willing to do in order to maximise its profit. That is absolutely despicable. One employer potentially has an employment offer for Craig later in the year, but if any employers are listening to this debate and can offer him a job, please get in touch. All that he wants is the chance to work.

I have been working with members of my party, Unite the union and Bryan Simpson and others from the better than zero campaign to target Livingston shopping centre and promote Unite’s fair hospitality charter. Livingston is the fast-food capital of Scotland. Hundreds of school pupils and students there work for some of the biggest and most profitable companies in the food and hospitality sector. What type of introduction to the world of work is having to do an unpaid trial shift for half a week or an unpaid trial week? When many of those young people get a job, they struggle to get by on a minimum wage of £4.20 an hour for a 16-year-old. For some, the bus fare is more than the wage for an hour or two.

Underbelly, which is the company that runs Edinburgh’s hogmanay celebration, sought to employ 300 volunteers to work a night shift for free on one of the busiest, coldest and most profitable nights of the year. The work at the new year celebrations was presented as a great “development opportunity” for volunteers. What utter garbage: it was plain and simple exploitation to maximise its profits. Working with the better than zero campaign, Unite the union and the STUC, we embarrassed the company into a U-turn on many of the jobs. That was a publicly funded event—it got public money. That should never happen when we finance such events.

I applaud Stewart McDonald’s bill and support him in taking it forward. A fair day’s work deserves a fair day’s pay. If we allow young people to be exploited, companies will come for the rest of the workforce—indeed, they already have in many sectors.

I say to Mr Lockhart that I can see him saying to a five-year-old boy in the 19th century, “Listen, wee man. Get up that chimney and, if you’re any good at it, we’ll pay you in a couple of weeks’ time.”

Photo of Dean Lockhart Dean Lockhart Conservative

I clarify for the member that we agree with the general principles of the bill. Stage 1 comprised three lines of text. Does Mr Findlay have more detail on the bill’s content?

The Deputy Presiding Officer:

I ask that Mr Findlay closes after he responds.

Photo of Neil Findlay Neil Findlay Labour

It is all right—I am finished.

The Deputy Presiding Officer:

Could you stand up and say that, just to keep everything right?

Photo of Neil Findlay Neil Findlay Labour

I am sorry, Presiding Officer. I do not have any more details on the bill. All that Mr Lockhart has said is that he is willing to allow exploitation to continue.

Photo of Neil Findlay Neil Findlay Labour

Mr Lockhart is saying that he would be willing to continue with a situation in which people are not being paid for being employed. To me, that is exploitation; to him, it might not be.

The Deputy Presiding Officer:

I think that we will close the open debate now.

Photo of Ross Greer Ross Greer Green

On a point of order, Presiding Officer. I apologise for the interruption, but I am conscious that other members have declared their trade union memberships. I did not do that so, briefly, I declare that I am a member of the National Union of Journalists.

The Deputy Presiding Officer:

That is not really a point of order, but I will let you away with it, as it was a point of clarification.

I call Jamie Hepburn to respond to the debate. You have about seven minutes, please, minister.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

Presiding Officer, I must say that you have been remarkably uncharacteristically generous this evening, so I will make no promises whatsoever about sticking to my time. I am sure that you would not have expected me to do so.

I, too, welcome the debate. It is important that we debate the topic in the chamber, so I thank Rona Mackay for having secured the debate. I fully support Stewart McDonald MP’s private member’s bill on unpaid trial work periods, which is very much in alignment with the Scottish Government’s fair work agenda. He is to be congratulated for introducing it.

Rona Mackay, Ross Greer and others mentioned the better than zero campaign, which is being led by young members of Unite. I understand that that campaign has been crucial in informing Stewart McDonald’s bill. I congratulate the union on the activities that it is undertaking. We support the better than zero campaign through the trade union modernisation fund. I wish the union well on all its endeavours.

No one should be put in the position of having to choose to work for free for fear of the risk of not working at all. Unpaid work trials are thought to be most prevalent in the retail and hospitality sectors, with young people and migrants being most affected, so I welcome the fair hospitality campaign and its focus on that sector.

Although it is difficult to quantify the number of cases, it is clear from what we have heard this evening that unpaid work trials are a real practice. Tom Arthur and, indeed, Neil Findlay, were correct to caution against the danger that such practice becomes normalised, so it is important that we focus on the issue.

It is particularly important that the state acts responsibly in this area. On that basis, we should focus on the Department for Work and Pensions’s voluntary unpaid trial programme. Jobcentre Plus actively promotes the idea of unpaid trials in the business environment through its website. Aspects of that promotion are of particular concern to me—not least, the language that is utilised. When talking about the benefits of the work trial, they extol the virtues more to the employer than to the potential employee. That is of particular concern to me because Jobcentre Plus should be about getting people into fulfilling and meaningful work. On the benefits of the programme to employers, it says:

“it’s risk free—you can try the person out before making a final decision”.

Not only is that somewhat demeaning and disrespectful to that potential employee, but it shows little serious commitment to the long-term employment prospects of individuals who take part in such initiatives.

In November 2017, I wrote to the former Secretary of State for Work and Pensions, David Gauke, not only to set out the Scottish Government’s support for Stewart McDonald’s private member’s bill, but to raise our concerns about the manner in which Jobcentre Plus promotes the programme. In my letter, I made it clear that I understand that employers are expected to run work trials in a positive way and to offer the job unless the participant proves to be unsuitable. I will not get drawn too far into how that can be done in practice; we have heard concerns about it. I said that I would be grateful to receive statistics on the number of work trials that have led to permanent employment and the number that have not led to employment and the reasons for that. It is of considerable concern to me that I have had no response thus far. I look forward to Mr Gauke’s successor providing me with the detailed information that I requested.

Photo of Johann Lamont Johann Lamont Labour

If the minister were able to establish which companies are being exploitative in the way that we are discussing, would he be willing to say that the Scottish Government will not allow those companies to access its support in relation to procurement, apprenticeships or whatever?

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

I was going to go on to set out our clear and firm commitment to fair work practices. I first need to secure the information that the member mentioned and then to analyse it and assess what it means in practice. Thus far, I have not been furnished with the information.

My perspective is that ultimately we require a change in employment law—

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

A change in employment law is the fundamental way in which we can deal with the matter, which is why we are debating—

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

Give me a second. Of course, I will give way.

That is why we are debating Stewart McDonald’s bill. I understand Johann Lamont’s point that there is a moral imperative for employers not to act in the way that we are discussing, and I agree with her to some extent. The Scottish Government recognises that moral imperative; we do not act in that way—

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

I find it confusing that Ms Lamont—from a sedentary position—is disagreeing that legislation is required. I thought that that was why we were having the debate. [



The Deputy Presiding Officer:

Excuse me, minister. For all that this is a members’ business debate, which is much more informal than business during the day, I remind all members that they should still speak through the Presiding Officer. The Presiding Officer is here for a reason.

You were considering a request for an intervention, Mr Hepburn. Can you decide to which member you will give way?

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

I was going to take Mr Findlay’s intervention, but just before I do so let me finish my point. I am clear that there is more that we can all do and consider doing, but fundamentally I think that the issue requires a change in the law.

Photo of Neil Findlay Neil Findlay Labour

Let us put aside change in the law and think about the powers that we have in the Scottish Parliament. Will the minister agree, very much on a point of principle, that where we know that companies are exploiting young people, whether they do so through unpaid trial shifts or other employment practices, the Government should not furnish those companies with public money?

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

We have set out our clear expectation that the businesses and employers with which we engage should adhere to our fair work agenda, and we are promoting that agenda through a variety of means. That is why we have the living wage accreditation scheme—nearly a third of the accredited employers in the UK are here in Scotland, and Scotland has the highest proportion of working-age population that is paid at least the living wage. That is why we have a business pledge that contains so much fair work practice. It is why we are promoting the fair work convention’s work. It is why we opposed the Trade Union Act 2016. It is why we have the trade union modernisation fund.

Although we can take those actions, the fundamental challenge that is before us is that we require a change in the law. That is why I think that most members who have taken part in the debate support Stewart McDonald MP’s bill, which is before the House of Commons. I wish that this Parliament could change the law, but we cannot do so. That is why we should get behind Stewart McDonald and his bill. Let us ensure that Westminster passes it.

Photo of Neil Findlay Neil Findlay Labour

On a point of order, Presiding Officer.

The minister might have inadvertently misled Parliament. I think he said that a third of businesses had signed up to the living wage. There are 300,000-odd businesses in Scotland and I think that 1,000 have signed up to be living-wage employers. Maybe the minister will want to correct that at a future date. I am trying to be helpful.

The Deputy Presiding Officer:

I am happy to let the minister respond to that in order to have clarification in this members’ business debate.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

I urge Mr Findlay to check the

Official Report because that is not what I said. The point that I made, of course, was that nearly one third of accredited businesses in the UK are here in Scotland.

The Deputy Presiding Officer:

Is everyone finished? That concludes the debate.

Meeting closed at 18:20.