Category Archives: Mark’s Monthly

Things to note in 2018

Welcome to the first Mark’s Monthly of 2018.

In this article, I’m going to highlight some things to take note of in the New Year.

General Data Protection Regulations (GDPR)

The Regulations are being introduced to provide individuals with greater control over how their information is handled by organisations. There is lots for organisations to do to ensure compliance by the time of the Regulations coming into force in May.

While data protection is not an employment law matter and the reach of GDPR extends far beyond the HR function, we recognise that HR is affected by GDPR. So, we’ve partnered with an expert in the area for our first training session of the year.

On 1st February, we will be delivering a workshop on Employment Law Essentials. We’ve also invited Ken Dunlop to take part of the morning to update delegates on GDPR and help us begin to think about what we need to be doing to ensure compliance. You can sign up for the seminar here – https://www.eventbrite.co.uk/e/employment-law-essentials-gdpr-tickets-41093613103

Employment Status

In 2017, several cases were brought by individuals, asserting that they had certain employment rights (sick pay, holiday pay, minimum wage) when the organisations they were working with were treating them as self-employed.

Employment status is likely to continue to be a big issue in 2018. Pimlico Plumbers are taking their appeal against the decision that a plumber was a worker to the Supreme Court in February. Uber may also take its case to the Court of Appeal, after having its application to “leapfrog” the Court of Appeal and take the case straight to the Supreme Court rejected.

There are numerous other cases that will be heard at a lower level.

The government is expected to address recommendations for reforms to the “gig economy” in 2018 which may bring more clarity in this area.

Gender Pay Gap and the Employment Act (NI) 2016

You may have heard on the news recently about the resignation of the BBC’s China editor, Carrie Gracie citing pay inequality with male international editors. All employers in Great Britain with over 250 employees had to publish salary figures following the introduction of the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017. Employers must show whether pay disparities exist in their workforce and if they do, employers are required to publish an action plan to eliminate any gender pay differences.

In Northern Ireland, The Employment Act (NI) 2016, which provides for the making of the Gender Pay Reporting Regulations, is yet to be enacted due to the lack of an Executive at Stormont. The 2016 Act also requires the government to publish a gender pay strategy and action plan.

It is a case of “watch this space” for now in relation to this matter in Northern Ireland. If the 2016 Act is implemented this year, it will bring in some significant reforms including the system of early conciliation via the Labour Relations Agency, meaning that all Claimants must first contact the Labour Relations Agency in an effort to resolve their case before issuing Tribunal proceedings.

We’ll be keeping you up to date with changes in the law as they arise.

Finally, as always, feel free to get in touch if we can be of any assistance to you this year. We look forward to seeing as many as possible at our seminar on 1st February.

The work Christmas party

With just a couple of weeks of work left until Christmas, attention is turning to the Christmas party in workplaces up and down the country. Without wanting to dampen the party mood, it would be useful to take a few minutes to consider some matters that may cause an employer difficulty and think about steps to mitigate against any risks.

While the Christmas party has the potential to be a great time of fun and enjoying each other’s company, it can also be fraught with difficulty for employers. When alcohol is involved, people sometimes act in ways that they would never behave in the workplace. The Christmas party is an extension of the workplace and an employer can be liable for the actions of employees in work Christmas parties.

If alcohol is permitted, employees should be encouraged to drink in moderation. Employees should be reminded in advance of the party of the organisation’s policies on equal opportunities and anti-harassment. A wise employer will remind employees that any actions that could be deemed to be aggressive or threatening or may constitute harassment of another employee will be dealt with immediately in accordance with the disciplinary procedure and may warrant dismissal.

Employers who take all reasonable steps to ensure that employees are protected from harassment will have a statutory defence to any Tribunal claim brought by an employee who feels that they have been the victim of harassment. It is therefore important to take some time to remind employees of the relevant policies and their specific applicability to the Christmas party. Employees should also be advised that they can be held personally liable for acts of discrimination and/or harassment against other members of staff.

So, from an employment law perspective, the message ahead of the Christmas party is simple – have a good time but make sure you treat everyone with the same dignity and respect that you show during a normal working day.

Have a great Christmas!

This article is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employment law, please do not hesitate to contact us.

 

 

Back to school and flexible working requests

Those of you with social media profiles will most likely have seen lots of photographs of children in their new school uniforms posted by friends and family over the last few days. No doubt many parents took a day or half day off work this week to take a child to their first day at school.

It can be difficult to balance home and work commitments. In this month’s article, Sharon shares some advice and highlights a case relating to flexible working which, while now open to all employees with 6 months’ service to apply for, are still more often than not motivated by a desire to balance work and family commitments.

Sharon writes…

Working parents will know the trials of balancing childcare with their career.  Fortunately for them, they have the legal right to request to vary their working pattern.  The statutory right is a ‘right to request’ and not a right to be granted flexible working.

Before 5th April 2015 this right only applied to the parents of children under 17 or 18 in the case of parents of disabled children or to those caring for an adult. Now any employee with 26 weeks’ continuous service can apply to work flexibly for any reason.

The employer does not have to agree to the request.  If the request is to be refused, the employer must set out the reasons for its refusal, and the reason must fall in to one of the statutory grounds on which the request can be refused, which are:-

  • planned structural changes
  • the burden of additional costs
  • a detrimental impact on quality
  • the inability to recruit additional staff
  • a detrimental impact on performance
  • the inability to reorganise work among existing staff
  • a detrimental effect on ability to meet customer demand
  • lack of work during the periods the employee proposes to work

Employers should give full consideration to a request for flexible working.  A management decision that certain types of role cannot be carried out flexibly may well not be sustainable in the longer term.

A former postman has recently been awarded £22,000 at an Employment Tribunal, for unfair constructive dismissal after he resigned over his employer’s attempt to unilaterally vary a flexible working pattern previously agreed.

Adam Gregory had worked as a postman for Royal Mail since 1993. In 2012, Gregory asked for his working days to be limited to Monday to Friday to accommodate access to his child at weekends.  His line manager allowed this and Gregory signed a letter acknowledging the new working pattern.

In 2015, Royal Mail started a restructuring exercise which was likely to change the way duties were carried out where Gregory worked. A questionnaire to determine employees’ working preferences was sent out. Gregory was on holiday at the time, so his union representative picked his preferences for him and selected a duty which would require Gregory to work three Saturdays a month.

When Gregory returned from holiday and discovered what had happened, he objected and submitted a new flexible working request.  A manager considered the new request but rejected it, partly on the ground that the work could not be reorganised among staff. Gregory appealed the decision, but this was also rejected.

Gregory raised a grievance, the outcome of which was that Royal Mail acknowledged that Gregory’s contract, as far as working hours were concerned, had been altered in 2012.

However, one month after this acknowledgement, Royal Mail sent Gregory a letter confirming he was to work three Saturdays a month.  In response, Gregory resigned.

Allowing Gregory’s unfair dismissal claim, the Employment Judge said “it was not physically impossible for [Royal Mail] to maintain his Monday to Friday working pattern, it was merely unsatisfactory, inconvenient, and more costly”.

This does not mean that an employer can never reject a flexible working request, but it is important to properly consider the request, and if a request has been agreed, not to attempt to unilaterally change the arrangement.  The risk of that course of action is a constructive dismissal claim and/or a sex discrimination claim.

As always, for advice on this matter or any other employment law query, please get in touch.

Dismissal during probationary period

Most contracts of employment contain probationary period clauses. It is common for contracts to contain a provision that the first three or six months in employment is considered to be a probationary period.

If the employee proves satisfactory during the probationary period, the employment is confirmed. If there is still some doubt at the end of the probationary period about the employee’s suitability, the probationary period may be extended for a further period of time.

Sometimes however it is clear that a new employee is not suited to the role. This may be for a number of reasons. They may have committed an act of misconduct or it becomes clear that they do not have the skills required to undertake the role to the required level. The employee may prove to be a poor timekeeper or have an unacceptable sickness record.

So what do employers need to keep in mind if they are considering dismissing an employee in their probationary period? Firstly, employers should note that probationary periods have no special legal significance. They act simply as an internal review mechanism, providing a time-frame for assessing suitability for longer term employment. The more legally relevant issue regarding length of service is whether the employee has one years’ service (two years in GB) as, after this, the employee has the right not to be unfairly dismissed and can bring a claim to the Employment Tribunal.

Until the employee has one year’s service (or two in GB), (s)he cannot bring a simple unfair dismissal case. For this reason, many employers assume that they can simply terminate an employee’s employment during their first year’s service without explanation and without following the usual procedure of carrying out an investigation, holding a disciplinary hearing and offering the right of appeal. It is true to say that employers will usually not fall into difficulty if they let an employee go on performance or conduct grounds during their probationary period.

Therefore, employers are often understandably surprised to receive advice that, despite the fact that the employee cannot bring a simple unfair dismissal claim, there are still good reasons to follow a process before dismissing someone, even in their probationary period.

There are at least three reasons for considering undertaking a dismissal procedure when contemplating dismissing an employee during their probationary period:-

1. While employees cannot bring simple unfair dismissal cases until they have the necessary length of service, there are a number of circumstances where the employee does not need any particular length of service to bring a claim to the Tribunal. If the employee alleges that the dismissal was an act of discrimination or was because they blew the whistle on impropriety or asserted a statutory right, they can bring their claim to the Tribunal. For this reason, it makes sense to go through a process of explaining why the dismissal is being considered, providing evidence of the poor performance or conduct and confirming the reason for the dismissal in writing. A failure to do this opens the door to the employee alleging that the dismissal was for a reason that does not require a certain period of service in order to bring a claim. Having been on both sides of Tribunal cases where an employee with short service alleged that their dismissal was for a reason that did not require them to have one year’s service, we can say that it is helpful to the employer’s defence in the Tribunal if they can produce paperwork from a dismissal procedure, setting out the reasons for the dismissal, with accompanying evidence.

2. Time, effort and money has gone into recruiting and training the individual. It makes sense to take some time to make sure that it is the right decision to let the person go as further time, effort and expense will be required to recruit and train the replacement

3. As a matter of fairness, it is good practice to advise the employee that their dismissal is contemplated and give them the chance to make representations and to consider these before deciding to dismiss. The employee may say something that persuades the employee to give them another chance and, if this works out, that will be a good result for both parties.

In summary, no matter how short a time an employee has been employed, if an employer is considering terminating their employment, it is worth taking some time to go through a dismissal procedure before confirming the termination of employment.

For advice on terminating the employment of an employee during their probationary period or any other employment law / HR matter, please get in touch.

Deal with performance or conduct issues early

Very often we will be asked to advise on issues that have been ongoing for quite some time. We recognise that it is often difficult to deal with concerns over performance or minor conduct matters.

Very few people relish having difficult conversations. However, issues such as a lack of attention to detail, poor timekeeping, a below average attendance record and too much use of mobile phone in the workplace can have a negative impact on productivity and can affect morale so should be dealt with at an early stage.

Too often managers neglect to address minor issues at an early stage. The effect of this is that the issue “snowballs” and resentment builds up, leading to a bigger problem down the line.

The Codes of Practice on dealing with disciplinary issues in the workplace (the LRA Code in Northern Ireland and the ACAS Code in GB) advocate dealing with minor issues of performance and conduct in an informal manner. Very often all that is required is a quiet word where the manager advises the employee that they have noticed a certain issue and pointing out the improvement that is required. If this leads to the desired improvement, that is the best outcome for all concerned. The employee is spared from formal disciplinary proceedings and the manager and colleagues of the employee benefit from the improvement. Only if improvement is not forthcoming or not sustained should a manager then consider moving to a formal disciplinary process for a minor performance or misconduct offence.

Our message to managers is to nip issues in the bud early before they become bigger problems down the line. A quiet, informal conversation at an early stage usually benefits everyone involved and prevents the issue becoming a bigger one with more serious consequences. If this does not resolve the issue and you have to go down a more formal disciplinary route, the employee will not be able to say that they have not had the issue drawn to their attention before the matter went down a more formal route.

Of course, as ever, we can be contacted for advice in relation to anything contained in this article or anything else to do with the law and good practice around employing people.

Employment Law Essentials

Welcome to the latest edition of Mark’s Monthly. This week we kicked off our training programme with a morning looking at “Employment Law Essentials”. We had a great morning with a full house of delegates from a wide range of organisations.

If you’re interested in our next session on “Employment Contracts”, when we’ll look at topics such as “minimum legal requirements”, “useful additional clauses beyond legal minimum requirements” and “varying contracts”, you can sign up here – https://www.eventbrite.co.uk/e/training-course-employment-contracts-going-beyond-the-legal-minimum-tickets-30477630413

For those of you who missed our ‘Employment Law Essentials’ course this week, this article gives you an insight into some of the ‘big ideas’ from the seminar but of course the detail and the comprehensive guidance we provided are exclusive to those delegates who attended.

We looked at four main areas in our focus on the essentials of employment law as follows:-

Recruitment

Employment law is engaged even before the employment relationship begins. Unlike when considering dismissal, when there is a clear statutory procedure to follow, the law does not specify a procedure that must be followed in recruitment. It just requires employers not to discriminate in recruitment and selection.

Getting the job description right allows an employer to set appropriate criteria and make selection decisions. Competence to perform the duties of the role are relatively easy to test but as the delegates at our session discovered in brainstorming the qualities of the ideal candidate, issues over the candidate’s character and how they will fit in with the culture of the organisation are often more important than technical competence so consideration needs to be given to how these areas are going to be tested.

Consideration should be given to how candidates will be expected to apply – application forms or CVs? Interview panel members should be well briefed in relation to their role and should receive equality training in advance of making selection decisions.

Basic employment rights

We looked at a wide range of the basic employment rights that employees benefit from, including:-

-       The right to a written statement of main terms of employment

-       Rights to various types of leave

-       The right not to be unfairly dismissed

-       Protection from discrimination

Managing issues

Misconduct, poor performance and poor attendance can create big problems for employers. It’s important that employers have clearly defined rules, setting out the behaviours that are expected and conduct that will not be tolerated. In particular, it’s important that employers notify employees of what it considers to amount to gross misconduct.

Performance is easier to manage when both the employer and employee know what is expected and performance is kept under review.

Dealing with issues early and keeping a record of conversations helps an employer to establish reasonableness if ultimately a misconduct, performance or attendance issue leads to the termination of employment of the employee

Following statutory procedures

There are strict procedures that need to be followed when an employer disciplines an employee or when an employee raises a grievance. Failure to follow these procedures, in the case of a dismissal, will lead to an automatic finding of unfair dismissal and an increase in the compensation awarded of between 10% and 50%.

In the case of a failure to follow a grievance procedure, a Tribunal has the power to increase or lower compensation by up to 50%, depending upon whether the employer or employee was responsible for not following the grievance procedure

 

Those were a few of the “headlines” from our half day seminar that took place this week. We will likely run the event again at some stage so keep an eye out for that if you missed it this week.

 

This article is intended as a general guide and for information only and is not to be taken as formal legal advice. For advice on any particular issue or to ask a question about anything contained in this article, please contact us.

Mark’s Monthly – last one of 2016

Welcome to the last Mark’s Monthly of 2016. Is it too early to say “Happy Christmas”? It probably is but with the first doors of the advent calendars having been opened and the school nativity play having already taken place, we’re feeling rather festive already in the Mason house.

In this last article of 2016, I’m going to briefly look back on a year in the life of Mark Mason Employment Law and offer a glimpse of a new area of focus for us for 2017. Don’t worry those of you who are anxious for your monthly employment law update – that follows later!

Undoubtedly the most significant development for our business this year was Sharon coming on board. Sharon has proved to be a great addition as many of you will be aware from the great advice that she has given to you over the last year. For me it has been a great asset to have a colleague to discuss issues with and seek a second opinion from. From a client’s perspective, having a second lawyer to contact has (I hope) led to even easier and quicker access to advice. When one of us is in Tribunal or in a meeting the other is usually free to provide assistance to clients calling or emailing with queries.

We have continued to grow our portfolio of clients retaining our services, including by adding several more clients in Great Britain. We aim to further grow our client base throughout the UK and Ireland in 2017. As well as adding new clients in 2016, we have been delighted to continue to work with clients with whom we have been working for some considerable time. The business has been established since the summer of 2012 so some of our clients have now been with us for over 4 years. We are always grateful to clients for their continued loyalty and consider it a privilege to have a role within their organisations as trusted advisors. 

We delivered some employment law training sessions this year – both in-house for clients with specific training needs and at events that we have hosted. Sharon and I both enjoy delivering training and have had positive feedback from delegates so we’ve decided to focus on this as an area for growth in 2017. We plan to host at least five half-day interactive training workshops next year, starting on 1st February with “Employment Law Essentials” – a practical course outlining the absolute “must dos” and “must not dos” of employment law. Look out for further details coming very soon.

As well as delivering training at events hosted by us, we will be offering bespoke in-house training for clients in their premises on a variety of employment law issues. You’ll be hearing more from us in relation to our training programme in due course so watch this space…

But enough about us. “Give us some juicy employment law gossip” I hear you cry through cyberspace. Well, ok then – since it’s nearly the end of the year, we’ll take a brief look at some of the ‘highlights’ of 2016 and consider what’s to come next year.

2016 was a relatively quiet year for employment legislation. The new National Living Wage for over 25s came into force in April and then the minimum wage for the under 25s was increased in October. We expect that, in due course, all increases will take place in April each year. The annual increase in limits for calculating various awards in tribunals and calculating redundancy pay took place as normal. In Northern Ireland, a week’s pay is now capped at £500 (£479 in GB) and the maximum compensatory award in an unfair dismissal claim is now £79,100 (£78,962 in GB – or one year’s gross salary, whichever is the lower).

In Northern Ireland, The Employment Act (NI) 2016 was enacted. Most of the provisions haven’t come into effect yet so look out for more from us in 2017 to keep you in the loop. The legislation will see the introduction of the system of early conciliation via the Labour Relations Agency, meaning that all Claimants must first contact the Labour Relations Agency in an effort to resolve their case before issuing Tribunal proceedings.  The legislation will also bring reforms regarding the industrial and fair employment tribunal rules that will probably only be of interest to employment lawyers. There is also the possibility of future provisions regarding the use of zero hours contracts, provisions to be made regarding gender pay gap reporting for Summer 2017 and other matters regarding responsibility for career guidance and apprenticeships

There were a variety of interesting cases in 2016. Two that stand out are the long running case of Lock v British Gas as well as Aslam & others v Uber. In Lock, the Court of Appeal concluded that holiday pay must include compensation for any results-based commission that would ordinarily be earned. We have known for some time that this was the direction that we were heading and the Court of Appeal confirmed it. We’re finding that there is still some uncertainty when we speak to clients around how commission and overtime should be taken into account when paying holiday pay so please seek advice from us if you haven’t already done so.

In Uber, an Employment Tribunal found that drivers that had been catergorised by the company as self-employed were in fact ‘workers’ and so had certain employment rights, including the right to the National Minimum / Living Wage and the right to paid holidays. The company has said it will appeal and we will keep you up to date with this important case in 2017.

Thanks for your interest in these articles this year. We look forward to continuing to being in contact with you next year and if at any stage we can be of any assistance, please do not hesitate to get in touch.

Finally, as this is the last article of the year, I would like to wish you a Happy Christmas and a great 2017. Enjoy the celebrations – just remember that the office Christmas party is an extension of the workplace! We don’t want to be defending any harassment claims in January so perhaps you should gently remind employees of their responsibilities at the work Christmas party, without pouring too much cold water on the festivities!

Mark

 

 

What is harassment and how can it be avoided?

Earlier this week, the TUC published the results of a survey which found that over half of women had been subjected to sexual harassment at work. This rose to almost two thirds for women aged between 18 and 24.

It is quite shocking that in 2016 so many women are subjected to inappropriate treatment in the workplace. Clearly this is an issue that employers need to be alive to. So, what do we mean by “harassment” and how should an employer seek to prevent it from occurring in the workplace?

Harassment is defined as unwanted conduct on the grounds of a protected characteristic that has the purpose or effect of violating the subject’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual being subjected to this unwanted behaviour. By “protected characteristic”, we mean any characteristic that the law protects people from discrimination on the grounds of – sex, sexual orientation, race, age, disability etc. Any unfavourable treatment towards an individual on one of these protected grounds will be unlawful.

Harassment can take various forms. Sexual harassment, which was the subject of the TUC survey can take the form of inappropriate touching, making lewd remarks and/or making inappropriate jokes of a sexual nature. It is important to note that the perspective of the person who is the subject of the behaviour is more important than the intention of the person engaging in the behaviour. One person’s friendly banter can be another person’s verbal harassment. If the person who is subjected to the behaviour reasonably takes offence, then the behaviour is likely to constitute harassment, even if no offence was intended.

The consequences of harassment in the workplace are severe. For the person subjected to it, it can be an embarrassing and frightening experience and have a negative impact on their work and may even leave them having time off on sick leave or considering their position in the organisation through no fault of their own. From the perspective of the employer, there is a serious risk of both the reputational and financial consequences of facing legal action if one of the organisation’s employees harasses another.

So, what practical steps should an employer take to try to ensure that no employee in their organisation will be subjected to harassment?

Firstly, it is important to have a clearly communicated policy, advising employees of what harassment is and that it will not be tolerated in the workplace. The policy should advise employees who feel that they have been subjected to harassing treatment that they have the right to report this and that any such report will be treated seriously and dealt with accordingly. The policy should also advise employees that anyone found to have been guilty of harassment is liable to be dismissed.

Secondly, employees should be trained in the policy. Employers who can show that they have taken all reasonable steps to protect employees from harassment at work can avail of a statutory defence. In order to avail of this, it is important to demonstrate not only that a policy was in place but that employees were aware of it and aware of their responsibilities generally. Any such training should include advising employees that they can be held personally liable for acts of discrimination and harassment in the workplace. Employees should also be advised that, even if they do not intend offence, if their behaviour reasonably causes someone to feel offended, it can constitute harassment. Without wanting to remove all workplace banter and joking, it is advisable to require employees to refrain from any banter or teasing that relates to any protected characteristic.

If a complaint of harassment is received, either in writing or verbally and whether or not the employee raising it actually uses the word “harassment” in their complaint, it should be investigated immediately and steps taken to protect the employee while the investigation is ongoing. This may, depending upon the circumstances, include suspending the employee who the complaint has been made about, or taking steps to separate the two parties if this is reasonably possible.

Eradicating harassment from the workplace is everyone’s responsibility. By clearly communicating a ‘zero tolerance’ policy, providing training and dealing appropriately with any issues raised by concerned employees, employers will be in as good a position as possible to ensure that no-one in their workplace feels that they have been subjected to harassment.   

This article is intended for general information only. For specific advice on anything to do with employment law, please do not hesitate to get in touch.

What might happen to employment law now that the UK is to leave the European Union?

Much domestic employment law legislation derives from European Law. Employment law is a devolved matter in the Northern Ireland Assembly.   Whilst part of the EU, Northern Ireland is obligated to implement employment legislation in a way that complies with European directives.  This has led to legislation like the Agency Workers (Northern Ireland) Regulations 2011, the Working Time Regulations (Northern Ireland) 1998 and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

After Brexit, will employers be subject to less stringent employment laws?

Directives implemented in to Northern Irish law already are unaffected unless or until amended or repealed by the Northern Ireland Assembly. 

Complete freedom from the EU would mean that the Assembly would be free to change and/or repeal legislation enacted because of its membership of the EU.    This could mean for example, an end to the right for workers on sick leave to accrue annual leave. 

Whether or not changes are made will depend on:

1.       Political pressure:  for example, it is unlikely that the public would support an end to the right to paid annual leave, or a complete repeal of discrimination legislation.  There will also be political pressure from trade unions and pressure groups; and

 

2.       What agreements are made with Europe, for example if the UK elected to join the European Economic Area (EEA), like Lichtenstein or Norway, it would be likely to accept most EU  legislation.   If this approach was adopted, little if anything would change for employers.

However it should be remembered that a large proportion of employment laws are not enacted because of any European obligation, such as the Shared Parental Leave Regulations 2014, the Service Provision Change (Northern Ireland) Regulations 2006 and enhanced rights to apply for flexible working.    Much of the employment protection which flows from Europe reflects accepted standards of good employee relations.  In addition, Northern Ireland and UK legislation enhances the minimum rights required by EU Law.  An example of this is annual leave, where the Working Time Directive requires member states to provide for 20 days paid annual leave for workers, whilst the UK and NI legislation provides for 28 days paid annual leave.   

A repeal of TUPE would cause uncertainty in the business community because tenders will have been priced to take in to account commercial risks and TUPE obligations.  However there may be an opportunity to make TUPE more business friendly, for example by making it easier to harmonise terms and conditions following a TUPE transfer.    

It should also be remembered that many rights derived from European law have been incorporated in to contracts of employment.  Contractual rights cannot be unilaterally changed even if there is a change to legislation.  In addition, the right not to be unfairly dismissed, is unaffected by the UK’s EU status. 

 

It is likely that the UK/NI would need to demonstrate that it has minimum employment protections in place in order to make it a viable trading partner for other European member states.  Any changes will likely necessitate public consultation.  Nothing will change until Brexit actually occurs and it remains to be seen what freedoms the Assembly will have to change legislation and what public opinion will drive any such changes. 

Sharon McArdle

This article is intended for general information only. For specific advice on anything to do with employment law, please do not hesitate to get in touch.

Do I have to advertise a job vacancy?

“Do I have to advertise a job vacancy?”

This is a question we get asked a lot and we can understand why. Generally when we are asked this question, the employer will have someone in mind that would be well suited to the role. In these circumstances, the employer often wants to dispense with the time consuming process of a recruitment exercise and simply appoint the person who they believe will be suited to the role. The added benefit of this from the employer’s perspective is that the employer knows the applicant and believes they will fit well into the team and so there seems to be less risk that the appointment will not work out.

The short answer to the question is “no” as there is no law that says that a vacancy must be advertised. However, in spite of the apparent attraction of simply appointing someone that you know, there are a variety of reasons why we believe it is good practice to advertise a vacancy to as wide a pool of candidates as possible, including:-

  1. By advertising widely, you increase the chances of appointing the right person. There may be an outstanding candidate for the position who you don’t know about and if you don’t advertise, you will lose out on the opportunity to recruit this top talent
  2. Failing to advertise may be indirectly discriminatory. For example a small employer who recruits through word of mouth may find that everyone in the organisation is a member of the same few families or a friend of these families. If all the family members and their friends are of a particular religious belief despite the workplace being in a “mixed” area, then this recruitment practice is likely to perpetuate the under-representation of people of a particular religious belief in the workplace and is likely to be indirectly discriminatory.

As no two organisations are the same, the issue of how the employer should go about the recruitment process will vary depending upon the circumstances. There are a variety of ways that recruitment processes can be carried out. Each organisation should have its own recruitment and selection procedure and review this when a vacancy arises.

One final point we always make when asked this question is that if the employer has someone in mind for the role, they should encourage that person to apply. If they are indeed the right person, this will be shown through the recruitment process, which will serve to confirm the employer’s view and will also give the comfort of knowing that the recruitment process complied with the law and best practice and gave the employer the best chance of recruiting the best person for the role. This is also a good process for the new employee to go through as they have the assurance of having been selected as the most suitable candidate following an open recruitment process.

 

This article is intended as a guide and for general information only and is not a substitute for taking specific advice relating to your situation. For specific advice regarding this or any other issue relating to employing people, please do not hesitate to contact us