CHAPTER 4 Recruitment and selection
Recruitment and selection Introduction • An HR department must be aware of the legal implications of recruitment and selection decisions. This section considers some of the main issues and the consequences of common decisions.
Recruitment and selection • Firstly, is it preferable to hire employed or self-employed persons? • Secondly, what are the possible implications of outsourcing the work to be done? • Thirdly, if employees are engaged, should they have indefinite, fixed-term, part-time, or some other form of contract of employment?
Recruitment and selection • Fourthly, what are the issues concerned with employing workers on a temporary basis? • Lastly, is it necessary or useful to impose a probationary period on new recruits? • And what are the legal implications of doing so?
Recruitment and selection • The section then deals with some of the regulatory constraints which impinge upon the process of recruitment and selection, including rules concerning rehabilitated offenders and migrant workers.
Recruitment and selection RECRUITMENT AND SELECTION • Organisations have to decide the terms on which to engage workers. There are important differences in taxation and employment costs as well as vicarious liability.
Recruitment and selection • Under what sort of contract will the person be hired? • Is it to be a contract of service (ie as an employee) or a contract for services (ie as an independent contractor)? • Is it to be a fixed-term or an open-ended contract? • Is it to be a full-time or a part-time contract? • Would it be better to use the services of an employment agency and take on a temporary agency worker?
Recruitment and selection Some statutes apply to all categories of worker but others do not. Some categories of worker are provided with special protection. Examples include:
Recruitment and selection Employees have statutory rights in relation to unfair dismissal, the right to maternity and parental leave. Employees are subject to the unwritten general obligations implied into all contracts of employment. When employees, rather than self-employed persons are engaged, employers are required by statute to deduct tax under Schedule E as well as social security contributions.
Recruitment and selection Employers are obliged to pay employers’ National Insurance contributions and to insure against personal injury claims brought by employees. The doctrine of vicarious liability applies to employees but not to the self-employed. – The essence of vicarious liability is that employers are held liable to third parties for the civil wrongs committed by employees in the course of their employment.
Recruitment and selection • It is not always clear whether a worker is employed under a contract of employment or is working under a contract for services. The intention of the parties is important, but may not be the deciding factor.
Recruitment and selection • The factors leading to a decision about whether a contract of employment exists or not are likely to include a ‘sufficient’ level of control by the employer and an ‘irreducible minimum’ of mutuality of obligation between employer and worker.
Recruitment and selection • Outsourcing is an option for many employers, but it is important to be aware of the effect of The Transfer of Undertakings (Protection of Employment) Regulations 2006.
Recruitment and selection • When an organisation decides on outsourcing an activity, it must also decide what is to happen to its current employees who work in the part to be contracted out. • It has an obligation to inform and consult those employees. • The employees currently working in the part to be transferred may be protected by the Transfer of Undertakings (Protection of Employment) Regulations 2006.
Recruitment and selection • Their contracts of employment are likely to transfer with the outsourcing contract. The contractor will become their employer and be liable for any debts arising out of the employment relationship. • It will be as if they signed their original contract of employment with the new contractor, and any outstanding claims from employees will transfer.
Recruitment and selection • Employers may be faced with decisions about whether to employ individuals on part-time, fixed-term or temporary contracts. • The regulatory constraints on the way the workers or employees on each sort of contract must be treated are different.
Recruitment and selection • The EU Directive on fixed-term work was implemented in the United Kingdom by the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
Recruitment and selection • The aims of the Directive are to improve the quality of fixed-term work by ensuring the application of the principle on non-discrimination, and to establish a framework to prevent abuse arising from the use of successive fixed-term contracts.
Recruitment and selection • In deciding whether to employ full-time or part-time staff, account will have to be taken of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations which give effect to a European Council Directive giving part-time workers the right not to be treated less favourably than comparable full-time workers.
Recruitment and selection • There are regulations dealing with employment agencies which aim to clarify the rights of both hirers and work-seekers.
Recruitment and selection • Probationary periods may be useful in deciding whether to confirm an appointment. • They may be significant because the law normally places a requirement for one year’s continuous employment before there is a right to claim unfair dismissal.
Recruitment and selection • Rehabilitated offenders have the right, in certain circumstances, not to reveal information about spent convictions.
Recruitment and selection • Employers may have to apply for a licence in order to recruit certain types of migrant labour. • Migrants have to pass a five-tier points-based assessment before they are given permission to enter or remain.
Recruitment and selection • The number of points needed and the way they are awarded depend on the tier the migrants are applying under. • Points reflect ability, experience, age and, when appropriate, the level of need within the employment sector.
Recruitment and selection • The tiers are: (1) highly skilled workers – for example, scientists and entrepreneurs; (2) skilled workers with a job offer – for example, teachers and nurses; (3) low-skilled workers filling specific temporary labour shortages – for example, construction workers for a particular project; (4) students; (5) youth mobility and temporary workers – for example, musicians coming to play in a concert.