Your legal responsibilities when it comes to hiring staff

15 August 2011
Your legal responsibilities when it comes to hiring staff

XpertHR Small Business- a service run by Caterer's sister website,XpertHR- offers an overview of your legal responsibilities in terms of hiring staff

Can an employer withdraw a job offer if it subsequently discovers that the successful candidate is pregnant? No, withdrawing a job offer because the individual is pregnant would be pregnancy and maternity discrimination. This is the case even if the position for which the person is applying is for a fixed term and she will not be able to see the term through, or if the position is to cover someone else's maternity leave.

There is no obligation on a job applicant to disclose her pregnancy to a potential employer at the interview, or before accepting the post.

Can an employer withdraw a job offer on receipt of a poor reference? Yes, provided that the job offer is conditional on receipt of satisfactory references, the employer can withdraw the offer if it receives a poor reference, without this amounting to a breach of contract.

The employer may wish to investigate the situation further to satisfy itself that the individual is unsuitable and that it does not wish to employ them. If the employer decides to go ahead with the employment, it can make it clear to the employee that continued employment is subject to the satisfactory completion of a probationary period.

Can an employer withhold certain rights or entitlements until the end of an agreed probationary period? Although employers usually stipulate a probationary period, at the end of which the new employee's performance can be reviewed, they should be aware that probationary periods have no meaning in law. This means that any qualifying period required for statutory employment rights - such as the one year's service to claim unfair dismissal, or the 26 weeks' service to be able to make a statutory request for flexible working - start to run from the date employment commenced, irrespective of whether or not there is any probationary period.

With regard to contractual entitlements, employers can elect to make these conditional on a minimum period of service of up to five years - or longer if justified.

In what circumstances might it be appropriate to extend an employee's probationary period? An extension of the probationary period may be appropriate where the employee's performance is unsatisfactory but shows some signs of continuing improvement. This will allow the employer an opportunity to decide whether or not the employee will be able to meet the required standard, for example, with further training or practice.

Where the employee has been absent from the workplace for a significant proportion of the probationary period, for example on sickness absence following an accident, an extension of the probationary period may be necessary to allow the employer to evaluate their performance over a reasonable period of time.

Are employers obliged to inform unsuccessful job applicants of the reason for their rejection? There is no legal requirement to inform unsuccessful job applicants of the reason for their rejection. However, many employers choose to do so out of courtesy. Any reasons given should, however, relate only to concrete factors such as type of experience, knowledge, qualifications or skills, and not to personal factors.

What should employers do with any records made during the selection process? Employers should always keep a record of each interview conducted, and in particular set out the reasons for the selection of the successful applicant and the reasons for the rejection of the unsuccessful candidates. Because the time limit for a claim of discrimination to be brought to an employment tribunal is three months from the date of the alleged act of discrimination, employers should retain records for between four and six months. These records will then be helpful if one of the unsuccessful candidates brings a claim for unlawful discrimination to an employment tribunal.

Does an unsuccessful job applicant require concrete evidence to prove that they were discriminated against? Because employment tribunals work to the "balance of probabilities" test, they do not require an applicant to prove beyond reasonable doubt that they suffered discrimination.

If the rejected candidate has reason to believe that the person appointed was less suitable for the job in terms of qualifications, experience or skills, and if the rejected candidate is, for example, of the opposite sex, from a different racial group, of a different sexual orientation or a different age, on the face of it, there will have been discrimination. In most cases, the burden of proof is then on the employer to show that it did not discriminate.

XpertHR Small Businessis the easy-to-use online resource specially tailored to small-and medium-sized businesses, which gives you simple, up-to-date guidance on all employment law and staff issues

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