- The Employment Contracts Act does not provide for an unpaid trial day.
- A trial day can actually be a concealed employment relationship.
The Employment Contracts Act does not provide for the concept of a trial day. Nevertheless, employees are often given the opportunity to try the job first. At the same time, the employer may say that if everything goes well and the candidate is successful in performing the work, the money will be paid and a contract will be concluded later.
Although the act does not regulate the concept of a trial day, it is still possible to try the job first. However, it should be kept in mind that any work performed on a trial day must be remunerated. Performing specific tasks, such as servicing customers at the store's checkout or putting goods on the shelves in a sales hall, is a job and is performed only for a remuneration. The employer does not have the right to demand unpaid work on trial days.
The act stipulates that if a person does work for another person which, under the circumstances, can be expected to be done only for remuneration, it is presumed to be an employment contract. The employer can refute the presumption of an employment contract by proving, for example, that the applicant was only introduced the organisation or performance of work and did not carry out actual duties or orders.
The employer does not have to remunerate the trial only if the applicant goes to the trial day to observe their future job and does not carry out any tasks or actual work. The length of the observation day is not regulated by law. The parties should assess and agree on a reasonable time for the applicant to familiarise themselves with the job. If the applicant finds that the observation time proposed by the employer is unreasonably long, they can refuse and make an alternative suggestion.
If the employee has not received remuneration for the work, the employee has the right to apply to the labour dispute resolution body with a claim for wages not received.
The parties should also keep in mind that the Employment Contracts Act sets out a probationary period to assess the employee’s suitability. During the probationary period, the employer and the employee have the opportunity to assess whether the employee’s health, knowledge, skills, abilities and personal characteristics are suitable to perform the agreed upon work. During the probationary period, the employee can determine their abilities and willingness to do this particular job.
If both parties want a trial day, it qualifies as an agreement under the law of obligations. In order to distinguish it from an employment relationship, we recommend that before the parties enter into an employment contract, they sign a written agreement that is understandable and clear for both parties.