Recruit in haste, repent at leisure

Monday, July 27, 2015

As published in the Sunday Business Post, Sunday 26 July 2015

As long as an employer takes care to avoid any discriminatory hiring practices, recruitment is pretty straight forward.  However once you’ve recruited the ideal candidate and made them an offer, it’s important to ensure that the contract of employment you put in place protects you as far as it possibly can.

Hiring

Since employment equality legislation came into force in the late 1990s, certain types of discrimination are prohibited.  This includes discrimination when hiring and employee.  You can’t refuse to hire someone on the basis of age, for example, unless there is an objectively justifiable reason for doing so.

Discrimination in hiring can potentially result in an Equality Tribunal claim.  Best practice is to avoid any suggestion that you have refused to offer someone a job because of an inherent personal quality.  The safest way to proceed in interviews is to avoid any topics that could be used against you.

It’s not unknown for unsuccessful candidates to flag particular questions asked of them, or certain topics raised, when bringing a claim.  It’s also important to remember that there is no such thing as a ‘blanket’ discrimination claim.

A prospective employee can only bring a claim under one of the nine named grounds in legislation.  They are sex, age, sexuality, race, religion, disability, family status, marital/civil status and membership of the travelling community.  A prudent employer will ensure that interviews are conducted in such a way that it cannot be remotely suggested that a job was not offered on the basis of any of these grounds.

Contract

Once you have offered the job it’s extremely important to ensure that you have a contract in place that offers you the greatest level of protection possible.  It’s sometimes thought that a written contract of employment is compulsory in Ireland.  It isn’t.  The most an employer is obliged to do is furnish a written statement summarising certain terms of employment.

However, an employer who does not have a formal contract in place is at risk.  That’s primarily because it will be much more difficult to insert a particular term or condition into what is effectively an oral contract.

The most important protections that an employer should put in a written contract include:

• a clear probationary period allowing the employer to break ties quickly and without consequence if the employee is simply not working out.
• a clear statement of the employee’s duties and obligations to avoid future ambiguity
• warranties in relation to CVs, work permits and any other critical aspects of the role.  If an employee misleads you as to their skills and qualifications etc., you want to be able to dispense with their services as quickly as possible
• maximum clarity in relation to employee benefits including salaries, bonuses, expenses, holidays and sick leave
• any ambiguity around eligibility for bonuses, for example, can be risky – the law states that a contract will be construed against the person who drafted it, meaning there’s a significant chance that an employee will benefit from an ambiguously-worded bonus clause
• a maximum protection when it comes to your confidential information.  You will also want to ensure that any sensitive material that is your property is returned to you on demand and, at a minimum, when the employment relationship comes to an end
• a prohibition on stealing clients and customers and, in certain cases, key co-employees after the employee parts company with you

Quite often, recruitment is treated as a form-filling exercise.  Someone in HR is given the task of filling in the blanks on an outdated precedent or, worse, a precedent downloaded without much thought from the internet.   A careless approach in recruitment, particularly when it comes to the contract of employment, can have serious repercussions at some point in the future.  Future pain can be easily avoided if even a little care is taken in the present.

Policies

Employers should always be careful to ensure that an employee cannot argue they were unaware of any policies and procedures in place.  These typically include a bullying/harassment policy.  The employee should be handed a copy of all of these policies during induction and given sufficient time to review them.  They should then be required to sign a statement that they have read and understood the policies.

It is not unknown for employees to argue (if these simple precautions are not taken) that they were unaware of the fact that they were prohibited from excessive internet usage or particular uses of email.  A few minutes prudent work at the start of the relationship can avoid wasted time and trouble further down the line.