Pre-employment test: caution required!

It is not uncommon for a company, during a selection procedure, to subject a candidate for a vacancy to a pre-employment test, more specifically a practical test within the company.

But is such a test allowed?

Principle

Collective Labour Agreement No. 38 allows productive work as a practical test during the selection procedure, provided that it does not last longer than necessary to test the candidate's abilities. 

The purpose of the pre-employment test is to check, in a summary manner, the candidate's knowledge and skills in relation to the proposed position. In a way, the candidate is placed in a work situation.

These tests are part of a pre-contractual phase. They cannot conceal work that is actually performed, nor be confused with a probationary period.

Reminder! The probationary period has been abolished since 1 January 2014. It remains only for student employment contracts, temporary employment contracts and temporary agency work contracts. The probationary period enables the employer to assess, in a more detailed way than on the basis of a pre-employment test, whether the employee hired is actually suitable for the job offered. In the event of an unsuccessful probationary period, the employment contract may be terminated quickly.

The legislation does not define the concept of ‘pre-employment test’. 

In concrete terms

Consequently, to avoid a pre-employment test being declared equivalent to time actually worked, the case law has set out its outlines:

• the duration of the pre-employment test must be limited to the time required to assess the candidate's abilities (a few hours maximum);
• the pre-employment test must be carried out under the supervision of a person authorised for this purpose;
• the pre-employment test must be characterised by the lack of utility/profitability/productivity of the task requested of the candidate (the ‘beneficiary’ of the test cannot, in principle, be a customer of the company, for example); 
• the pre-employment test cannot be remunerated or give rise to any material benefit; only travel expenses may be reimbursed to the candidate.

If a company wants to subject a candidate for a vacancy to a preliminary test, it will ensure:

• on the one hand, to comply strictly with the conditions described above
• and on the other hand, to lay down in a written agreement signed in advance by both parties, the terms of the test: date, time (if possible outside working hours), limited duration, nature, free of charge, lack of utility/profitability/productivity of the test, etc.

Otherwise, the work performed as part of a pre-employment test may be treated as work carried out under an employment contract. In such a case, penalties are imposed on the company for unreported employment (no Dimona declaration, no declaration to the National Social Security Office, etc.).

Please contact Legal Partners at legalpartners@partena.be if you would like to carry out a pre-employment test.

Source: Collective Labour Agreement No. 38 of 6 December 1983 concerning the hiring and selection of employees, www.cnt-nar.be.