HOW TO HIRE AN EMPLOYEE IN THE UK
13.01.2022
Background information on applicants
Background checks
Are there any restrictions or prohibitions against background checks on applicants? Does it make a difference if an employer conducts its own checks or hires a third party?
As stated in the Rehabilitation of Offenders Act 1974, generally, there are restrictions imposed on the employers who wish to carry out background checks on applicants; except for some exemptions (e.g. working with children or vulnerable people, and some other jobs, such as professions (e.g.medical and legal) and specific financial sector vocations). The Act prevents some employers from refusing to hire someone if the employee or candidate has disclosed or failed to disclose a crime that is regulated by the Act.
The check can be carried out by the employer or a third party. Disclosure and Barring Service checks are required before an applicant can work with young children or vulnerable adults, and may be useful in other situations (e.g. for those professions and occupations covered by the Rehabilitation of Offenders Exceptions Order).
To make sure that an employee may lawfully work in the United Kingdom, the Asylum and Immigration Act 1996 and the Immigration, Asylum and Nationality Act 2006 require that some recommended background checks be performed and information be kept before employment begins (and thereafter on the expiration of an employee’s limited leave to remain).
Medical examinations
Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment?
The Equality Act of 2010 particularly regulates pre-employment health exams or questions. Pre-employment questions of or about an applicant for work are banned, except in specific limited situations, before an offer of work is made to the applicant, or before his or her inclusion in a pool from which candidates for work will be selected.
Individual job offers can be conditional on successful health checks, but if it appears that an offer is not confirmed based on the information provided by the health checks, the recruiting company may be subject to discrimination claims.
The Access to Medical Reports Act 1988 applies to medical reports given by a medical practitioner responsible for an individual’s care (rather than an independent doctor appointed by the employer), which essentially gives the patient the right to see and comment on the report before the report gets sent to the employer.
Under the EU General Data Protection Regulation (Regulation (EU) No. 2016/679), medical information about an individual also makes up a special category of personal data for the purposes of protections of the Data Protection Act 2018 (DPA 2018) and the EU General Data Protection Regulation (Regulation (EU) No. 2016/679). (GDPR).
Drug and alcohol testing
Are there any restrictions or prohibitions against drug and alcohol testing of applicants?
Any such checks should be ‘justified, necessary, and proportionate,’ according to general principles derived from the DPA 2018 (and the GDPR) and the Human Rights Act 1998. As a result, such checks are frequently found in the context of particular roles in the transportation and industrial sectors (justified by health and safety concerns), as well as in the financial and other professional sectors.
Even where such checks are justified, it is advised that their usage be reflected in an appropriate provision in relevant employment contracts during employment.
It is rarely acceptable for such checks to be carried out by the individual’s doctor because the resulting report would be subject to the rights granted under the Access to Medical Reports Act 1988. There may be problems, especially if the requirement to submit such checks appears to be unreasonable or unjustifiably targeted at specific groups.
Hiring of employees
Preference and discrimination
Are there any legal requirements to give preference in hiring to, or not to discriminate against, particular people or groups of people?
No. In the United Kingdom, positive discrimination is illegal in general; but, public bodies are liable to some extra positive requirements, and ‘reasonable adjustment’ in disability discrimination is considered a form of partial positive discrimination.
Employers in the United Kingdom may (but are not required to) take under-representation of those with protected characteristics into account when choosing between two equally qualified candidates for employment or promotion under the Equality Act 2010, as long as there is no automatic selection of under-represented groups and decisions are made based on achievements (ie, by the use of mandatory quotas, which is an increasingly common phenomenon in mainland Europe). Regardless of the new provisions, it is still illegal to choose a less competent candidate because he or she belongs to a protected category.
Must there be a written employment contract? If yes, what essential terms are required to be evidenced in writing?
No, having a written employment contract is not required by law. However, on the first day of employment, the employee or worker must be given a statutory statement of particulars, which must include the following:
- the names and addresses of the employee or worker and the employer;
- the start date and the start date for continuous employment;
- the job title;
- the place of work;
- the length of the temporary or fixed-term work;
- terms relating to work outside the United Kingdom for a period of more than one month;
- Remuneration (earnings) details;
- the hours of work;
- the days of the week on which he or she is required to work and whether working hours or days may be variable;
- any trial period that starts at the beginning of the engagement, including any conditions and its duration;
- holidays and holiday pay;
- sickness and sick pay;
- any other paid leave (eg, family related leave such as maternity or paternity leave, or time off for public duties);
- the pension;
- any part of any training entitlement that the employer requires him or her to complete, including any training that it requires but does not pay for;
- any other benefits provided by the employer;
- the notice period;
- whether the work is temporary or fixed-term;
- collective agreements; and
- the disciplinary and grievance procedures.
As a result, in the United Kingdom, it is standard practice for all employees to have a written employment contract with their employers that includes at least the elements listed above.
Certain types of clauses are unlikely to be enforceable unless they are in a written employment contract; for example, post-termination covenants not to compete, post-termination confidentiality and intellectual property protection.
To what extent are fixed-term employment contracts permissible?
They are allowed, however the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 provide several rights and protections. There is no maximum contract length, but successive fixed-term contracts of four years or longer are automatically considered permanent contracts with the employer unless the company can objectively justify it.
Probationary period
What is the maximum probationary period permitted by law?
There is no maximum period. Employers often enforce a six-month or less probationary period. If stated in the employment contract, the probationary period may be extended at the discretion of the employer.
Classification as contractor or employee
What are the primary factors that distinguish an independent contractor from an employee?
An employee is someone who is required to perform work under the supervision of an employer and has no right to substitute his or her labour. An employment relationship is also characterised by the fundamental mutual obligations to personally perform work (employee) and to provide and pay for it (employer).There is no one criterion for employment selection. Various factors will be considered, including the amount of control exercised over an individual by the hirer, whether the individual is required to personally provide the services and the extent to which the individual is integrated within the business.
An independent contractor is in business on his or her own account, takes profits and bears losses and risks, and controls his or her own work product. He or she has the ability to substitute labour in most cases (with a few exceptions). Determination of employee or independent contractor status is a question of substance over form.
Temporary agency staffing
Is there any legislation governing temporary staffing through recruitment agencies?
The Agency Workers Regulations of 2010 enforce EU legislation to ensure that basic working conditions for temporary agency workers are no less favourable than for permanent employees, and that they have equal access to facilities and opportunities. The regulations provide two types of rights: those that apply from the first day an agency worker starts working for the company (day one rights) and those that apply after 12 weeks of continuous employment.
Day one rights include access to the hirer’s shared facilities and services and information about vacancies with the hirer. This means that the hirer must provide the agency worker with the same access to collective facilities and services as its own workers. Workers employed through agencies are also protected from unfair treatment (unless objectively justified) and must be informed about employment vacancies.
After completing 12 weeks of continuous work at the hirer, a temporary agency worker is entitled to the same minimum working and employment conditions as an equivalent company employee. This means he or she is entitled to the same pay, working hours, and conditions for night work, rest periods, and annual leave as an equivalent employee of the company. Agency workers who have entered into a ‘pay between assignments contract’ (previously excluded from pay parity) will also be entitled to equal treatment concerning pay starting on April 6, 2020
In the first instance, any violations of the Agency Workers Rules will be enforced on the recruiting agency unless it can show that it has met the criteria of taking reasonable efforts to ensure that the hirer complies with the regulations. If this can be shown, liability will be transferred to the hirer.
Staffing through recruitment agencies is additionally governed by the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended). In particular, the law:
- prohibits an employment agency or employment business from charging agency workers a fee for finding them work;
- prescribes the terms that must be agreed upon by agency workers;
- prescribes the terms that must be agreed upon by hirers;
- prohibits the use of agency workers to replace individuals taking part in industrial action; and
- limits the transfer fees that may be charged to a hirer if the agency worker becomes directly engaged by the hirer.
Inna Semeniuk
Solicitor
