The following checklist sets out the key legal matters that employers need to consider before any new candidate commences employment.
Check references early
References should always be checked at the earliest opportunity. You do not want a situation where an employee is already in situ when a negative reference comes through.
Check clearances
Check any legal clearances needed before employment can commence. For instance:
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if the employment involves working with children or vulnerable adults, you need to obtain a vetting disclosure from the National Vetting Bureau
- if the employee is not an EEA/Swiss national, then you need to confirm that the employee has a valid employment permit before commencing employment
Pre-conditions
If the employment offer is to be made subject to certain pre-conditions then you should ensure these are clearly communicated to the employee at the earliest opportunity. Any pre-conditions should be clearly set out in any contract or conditional offer letter.
The employer should also be careful to ensure that any pre-conditions and/or the manner in which they are imposed do not amount to discrimination under employment equality legislation. For example, certain employments may be subject to the employee passing a medical and while this is completely necessary and acceptable in certain scenarios, an employer will need to be careful that neither the criteria itself nor the manner of its implementation breaches the Employment Equality Acts.
Prepare contract
An employer is legally obliged to provide the employee with a written statement of terms and conditions of employment within two months of the employee commencing employment. If employers don’t do this, they are leaving themselves open to a claim from the employee for up to four week’s remuneration. Ideally you should give a contract to a new employee before they commence employment, but if that is not possible, make sure they get it at the earliest opportunity.
Contract type
It is important to ensure that the correct type of employment contract is issued to the employee eg permanent/fixed term/part time etc. For example, there are very specific drafting requirements for fixed term contracts and if these are not complied with, the contract may end up being a de facto permanent contract despite the employer’s intention to only offer a fixed term employment.
Check the employee’s previous restrictive covenants
This particular check applies more to senior employees. Most senior employee contracts contain restrictive covenants in the form of non-compete and non-solicitation clauses. So when hiring a senior employee, you should ask them to confirm that they are not breaching any restrictive covenant contained in their old employment contract. The purpose of this check is to ensure the employee is contractually free to come and work for you. By obtaining this comfort you can be confident that the new employee will be able to get on with the job at hand. No employer wants to find their new employee or, indeed find themselves, embroiled in litigation concerning the employee’s previous employment contract. In fact this is something the employer may even consider including as a pre-condition to the employment.