As originally appeared in the Irish News, 13 June
Ian McFarland, Partner, Employment, Eversheds Sutherland
No matter the industry, all employers are grappling with the challenge of recruiting and retaining talent. In the rush to get people through the door, appointment processes may be shortened, or an employer might be willing to take a chance on a candidate, despite not being fully sold on them. Taking short cuts can create headaches down the line if things don’t go to plan and there are a few key processes that employers should follow if they are to keep themselves right.
When the desired candidate has been identified, a formal letter of offer should be issued. This will identify some of the main terms of the employment, such as role and salary, but from the employer’s perspective it is crucial for the letter to also note any conditions of the offer. These may include satisfactory references, a pre-employment medical, evidence of qualifications, or evidence of the individual’s right to work.
Making the offer “conditional” provides a sound basis for the employer to withdraw it should any of these prerequisites be unfulfilled. Of course, the candidate may be disappointed and there is a risk of an allegation that the withdrawal was for an unlawful reason. However, that will be a difficult case for the candidate to make where the employer’s decision was due to a clearly stated pre-appointment condition not being satisfied.
It’s a legal requirement for a written statement of employment particulars, which usually takes the form of a contract of employment, to be issued within two months of the commencement of the employment. Despite this, the issuing of a contract can often be overlooked or delayed. When the going is good, a contract of employment tends to be far from the mind, but when things go wrong it is usually the first document the parties reach for.
Not having the terms of the employment in writing undoubtedly creates more risk for the employer. It brings uncertainty to the relationship and in the absence of evidence of what was agreed, a Court or Tribunal is more likely to favour an employee than a better resourced employer who should have known better.
The most important term of the written contract will be the probationary period. The purpose of probation is to provide a suitable amount of time for the employer to assess the employee in conduct, attendance, and performance. Despite their popularity, they are often misunderstood in practice. The key points to keep in mind are length of probation, right to extend the period, notice to terminate, and the provision of feedback throughout the probation rather than simply at the end.
If an employer finds itself in the position of withdrawing an offer or terminating altogether, the implications may vary. If an offer has been made, accepted, and conditions met, but the employer changes their mind, then the prospective employee is likely entitled to a payment. If the employment has commenced, termination will have to be carried out in accordance with the law and the contract, with certain payments due and owing.
In the current candidate friendly environment, employers would be forgiven for shortcutting recruitment processes to get the deal done. However, this can lead to costly and frustrating action later in the day. It’s vital that employers carry out their due diligence and keep their processes above board. Taking that extra time provides protection in the long run.