The future of work is now. Today’s jobs market and workforce is constantly changing and evolving. Individuals no longer have a ‘job for life’ attitude but instead have different expectations of work and the workplace. Triona Cody, an associate in Beauchamps’ employment and benefits team, writes.
Employers need to respond to the societal shifts in today’s job market by recruiting talented individuals in compliance with employment equality legislation and then putting an appropriately drafted employment contract in place.
1. Advertising a job
Employment equality legislation applies to the recruitment process. A claim of discrimination on the grounds of gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community, is a real possibility at any stage of the recruitment process, including, the advertisement of a job vacancy. It is important to bear in mind that an advertisement may also be of relevance in construing the terms of an employment contract.
Employers should keep a full record of the interview process which should be clear and transparent. This information should be kept on file for at least 12 months after the recruitment process: to assist employers in defending any claim of discrimination. Interviews should be conducted by a diverse panel of individuals and objective criteria for selection should be decided upon in advance of interviews. All candidates should be treated equally at interview and reasonable accommodations should be made to facilitate a candidate with a disability. An independent and factual assessment of a candidate against the selection criteria should take place immediately after the interview is over.
Written consent to seek a reference from a candidate’s current and/or former employer(s) should be obtained from any candidate who is short-listed for a job or to whom a provisional offer of employment has been made. It is important to bear in mind that a current or former employer will be liable to the new employer for any loss or damage resulting from the new employer’s reliance on the reference.
4. Medical examinations
Employers may require prospective employees to pass a medical examination as a pre-condition of employment. Employers should ensure that information provided by such a medical examination is not used to discriminate against the prospective employee.
5. Employment permits
Employers should check if the prospective employee is eligible to work in Ireland. In general, non-EEA nationals, unless they are exempted, must have an employment permit to work in Ireland. EEA and Swiss nationals do not need an employment permit. There are nine types of employment permit, including, a General Employment Permit, a Critical Skills Employment Permit and a Dependant/Partner/Spouse Employment Permit.
6. Vetting disclosure
Employers should consider if the prospective employee will be working with children or vulnerable persons. If so, employers must ensure that it will not permit the prospective employee to undertake relevant work with children or vulnerable persons on their behalf, unless the employer receives a vetting disclosure from the National Vetting Bureau in respect of that prospective employee. If the prospective employee will be working with children or vulnerable persons, he/she should be asked to complete the application form to be vetted and return it to the prospective employer. Garda vetting will only be conducted on the written consent of the prospective employee. A prospective employee may obtain a copy of their Garda Vetting disclosure from the prospective employer to whom it was issued.
7. Restrictive covenants
Employers should ensure that the prospective employee will not be in breach of any contract or restrictive covenant with a current employer and/or former employer(s) or other party if he/she enters into a contract of employment with the employer. The prospective employee should be contractually free to join the employer’s workforce. Employers do not want to be involved in litigation concerning the prospective employee’s previous employment.
8. Terms of employment
Employers are legally obliged to provide employees with a written statement of terms and conditions of employment within the first two months of the commencement of employment. However, this requirement does not apply to an employee who has been employed for less than a month. The Employment (Miscellaneous Provisions) Bill 2017, published by the Employment Affairs and Social Protection Minister late last year, specifies that core employment terms are to be provided to employees within five days of starting work for the employer. Core terms of employment include name and address of employer, rate of pay and hours of work. If an employer fails to specify to an employee, in writing, these core terms of employment within one month of the date of commencement of employment, an employer could be liable on summary conviction (i.e., in the District Court) to a fine not exceeding €5,000 or up to 12 months’ imprisonment. The Bill is currently before Dáil Éireann and has not yet been enacted.
9. Contract type
Employers should ensure that the correct type of employment contract is issued to the prospective employee (e.g. contract of indefinite duration/fixed-term contract/specified-purpose contract/part-time contract etc). The correct type of employment contract is important, for example, no end date is specified in a contract of indefinite duration and the grounds for the termination of the employment will be specified within the contract. Whereas a specific end date is specified in a fixed term contract and unfair dismissal legislation does not apply where the expiry is due only to the ending of that contract on the specified date.
10. Policies and Procedures
Employers should ensure that they have good workplace policies and procedures in place to govern the day-to-day running of the workplace. There are two forms of employment policy or procedure in Ireland; those that are mandated by Irish statute or regulation and are compulsory, such as, grievance procedures and disciplinary procedures; and those that are desirable from a best practice point of view but are at the discretion of the employer, such as, a computer usage policy and performance management policy.
Recruiting talented individuals for a changing workplace is only the first step for employers. Employers also need to ensure they have the appropriate contractual framework in place setting out the terms and conditions of employment. Written policies and procedures will set out the acceptable standards in the workplace and allow employers to take action when these standards are not adhered too.
For more information:
Triona Cody, Employment and Benefits Team
T: +353 (0)1 418 0600