Hiring the Right People the Right Way Legal Considerations

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Hiring the Right People the Right WayLegal
Considerations
Karl Hutchinson Solicitor
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Key Employment Rights

• Written terms and conditions
• Written statement of pay
• Minimum wage
• Maximum working week of 48 hours
• Unpaid breaks
• Leave from work
• Equal treatment
• Equal pay
• Safe workplace
• Minimum notice

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Access to Employment

• S.8 of the Employment Equality Act 1998
  prohibits discrimination in relation to
• Access to employment
• Conditions of employment
• Training or experience for or in relation to
  employment
• Promotion or re-grading, or
• classification of posts

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Advertising

• Not publish or display an employment
  advertisement which
• Indicates an intention to discriminate or
• Might reasonably be understood as indicating such
  an intention
• Example
• Young and Dynamic

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Interviews

• The interview process is area in which many
  organisations are vulnerable to allegations of
  discriminatory practices.

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Interviews

• The Employment Equality Acts 1998 and 2004
  prohibit discrimination in recruitment and
  employment generally on the following nine
  grounds
• gender, marital status, family status, age,
  race, religion, disability, sexual orientation
  and membership of the traveller community.

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Interviews

• Need to have a transparent process
• Failure to maintain adequate interview notes (or
  the practice of destroying interview notes after
  the interview process has completed) has been
  criticised

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Interviews

• Cunningham -v-BMS Sales Ltd.
• Ms. Marie Casey vs Board of Management, Coachford
  National School, Co. Cork and The Department of
  Education and Science

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Advertising and Interviews

• Advertisements, the selection of candidates for
  interview and the conduct of the interview must
  be seen to be non-discriminatory.

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References

• Onus on a prospective employer to be fair and
  thorough in its assessment of the views of
  referees and to adopt standards that are fair and
  reasonable

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References

• Advisable that the employer check references
  prior to giving the candidate an indication that
  they are likely to be successful, subject only to
  references.

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Pre-Employment Vetting

• Any verification process should be transparent
  and applicants should be told what information
  may be verified and how it may be verified.

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Misrepresentations

• conduct a fair investigation
• sanction must be proportionate to the seriousness
  and the relevance of the inaccuracy.

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Terms of Employment

• Terms of Employment Acts 1994-2001
• Provide employees with a written statement
  setting out certain details of the employment
  within two months of commencement of employment.
• Furnish an employee with written details of any
  changes within 1 month after the change takes
  effect.

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Part Time Employees

• Protection of Employees (Part-Time work) Act 2001
• Normal hours less than comparable employee
• Cannot be treated in less favourable manner
• All employee protection legislation applies

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Fixed Term Employees

• Protection of Employees (Fixed-Term Work) Act,
  2003
• Prevent abuse from successive contracts
• Exercise extreme caution when renewing
• Cannot be treated less favourably than comparable
  permanent employee
• Fixed term v Specific purpose

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Fixed Term Employees

• Comes to an end at expiry of fixed term
• Expected to make fixed term employee permanent at
  end of fixed term if services still required
• Must objectively justify renewal of fixed term in
  writing

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Fixed Term Employees

• After 14th July 2003 aggregate duration of 4
  years
• Before 14th July 2003 completes or completed 3
  years continuous service contract can only be
  renewed once more and cannot exceed 1 year

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Fixed Term Employees

• Information required
• State in writing what will cause contract to end
• Written statement of objective grounds
• Inform of vacancies for permanent positions

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Contracts of Employment

• Need to consider
• What parties agreed
• The Law
• The Constitution
• Custom and Practice

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Contracts of Employment

• At minimum must contain terms as per Terms of
  Employment (Information) Act, 1994

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Contracts of Employment

• Suggested headings
• Duties and responsibilities
• Reporting
• Place of work
• Hours of work
• Salary and pay scales
• Probationary period
• Holiday entitlement
• Absence from work
• Maternity/paternity leave

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Contracts of Employment

• Suggested headings contd
• Force majeure leave
• Pension
• Health and safety
• Termination
• Grievance/disciplinary procedure
• Layoff/short-time/redundancy
• Expenses
• Confidentiality
• Variation of contract

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Contracts of Employment

• Other headings
• Bonus
• Sick pay scheme
• Testing for intoxicants
• Harassment/bullying/discrimination
• Retirement age
• Restrictive covenants
• Data protection
• Guidelines personal hygiene, appearance etc
• Staff handbook

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Probationary Periods

• Useful tool
• Allows for performance evaluation

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Probationary Periods

• Common misconception
• Entitled to dismiss without benefit of fair
  procedures

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Probationary Periods

• Legislation
• Unfair Dismissals Acts 1977-2001
• Industrial Relations Act, 1969
• Common law/breach of contract

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Probationary Periods

• Clause in contract word of caution
• The first 6 months shall be a probationary
  period possible fixed term
• State termination by providing specific period of
  notice

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Recent and ForthcomingDevelopments

• Collective redundancies
• Health Safety
• Court/tribunal awards
• Redundancies
• Age discrimination and pensions

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• Thank you for your kind attention