EMPLOYMENT LAW NOVEMBER/DECEMBER 2019
Employment law SOS
This month, our legal experts explore targeted recruitment, a
non-renewed temporary contract and what to do when a promised
promotion never materialises following a change at the top
BY TOM WATKINS, PARTNER AND SARAH WEST, EMPLOYMENT SOLICITOR, SHULMANS LLP www.shulmans.co.uk
Seeing the stories of
Thomas Cook employees
who had lost their jobs when
the company collapsed being
offered job interviews and
work experience with other
organisations got me thinking.
A local metal-working firm
has recently shut down, and
we would like to offer their
former staff roles in our site.
They have many skills that
we’re looking for, but is it
legal to offer jobs solely to
specific people?
Despite having good intentions,
care should be taken to ensure
that you are not inadvertently
exposing yourself to risk. As is
often the case in instances of
targeted recruitment, there is
a risk of discrimination – both
directly and indirectly.
In this case, you could
potentially be discriminating
against those who possess one
of the ‘protected characteristics’
recognised (and protected)
by law, such as age, disability,
gender reassignment, marriage
and civil partnership, pregnancy
and maternity, race, religion
and sexual orientation. For
example, if the workforce of the
recently shut-down firm you
wish to recruit is made up of
the same racial group, offering
jobs to those specific individuals
could be discriminating against
those of a different racial group
who have not been given the
opportunity to apply. Does
that fit with your equality and
diversity responsibilities?
If you can offer employment,
it would suggest that you have
several vacancies open. If so,
you might want to consider
advertising more widely to
ensure you’re hiring the most
suitable candidates.
If you were to advertise
more widely, the ex-employees
of the defunct firm can
apply nonetheless and may
be successful. However, it
is important to follow an
objective process to mitigate
the risk of any discrimination.
Discrimination can occur in
the form of the job / person
specification, where and how
widely the role is advertised, the
sifting process, arrangements
for interviews, and the
decision maker’s choice of a
successful candidate. The risk of
discrimination at each stage of
the recruitment process should
be carefully considered so that
action can be taken accordingly.
limited by a defined time period,
or completion of a project.
Fixed-term employees
benefit from protections for
the duration of the term of the
contract, but if you continues
to work for your employer
following its expiry, it would
be best practice for the parties
to agree new terms. In the
absence of that, you will not be
left unprotected and terms will
instead be implied by law.
Where there has been no
discussion in relation to a
defined period of extension, the
likely implication is that you
will be considered as employed
for an indefinite term. Apart
from the fixed term element,
all other contractual terms
that were applicable previously
(such as hours, pay duties and
benefits) will continue to apply
assuming both parties have
continued to act as though those
terms still apply. For example,
your employer must continue
to provide work and pay you in
the usual way for carrying out
similar duties on the same hours
as applied previously.
If either you or your employer
wish to terminate the contract,
the law will imply a ‘reasonable’
notice period, to be given by
either party and calculated by
reference to various factors
including the type of work and
the employee’s length of service
and seniority. As a minimum,
you will be entitled to receive
the statutory minimum notice
required under the Employment
Rights Act 1996, (one week for
each completed year of service
up to a maximum of 12).
If you accrue two years’
service, which usually includes
the period under the fixed-term
contract, you would benefit
from additional protections,
I was hired about 18 months
ago on a temporary contract,
which has now expired.
Nobody has spoken to me
about renewing it, but then
again, nobody has spoken
to me about my job being
redundant. In fact, every time
I mention that I’m technically
out of contract, it just gets
laughed off. I’m therefore
not too worried about losing
my job, but I am concerned
that I have no legal rights as I
technically have no contract of
employment. Is this the case?
It appears you have been
employed under a fixed-term
contract, which may have been
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