Legal Considerations During InterviewsMaking an Offer of Employment and Legal Considerations
UK Immigration LawEmploying Someone on a Work Permit
The Worker Registration SchemeMedical Examinations of New Employees
Changing an Existing Contract of EmploymentThe Data Protection Act

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Interviewing and the Law (London/UK)

Legal Considerations during an Interview

It is the responsibility of all interviewers to ensure that the interview is carried out in accordance with the law. The most important legal consideration to make when carrying out an interview is that you are careful not to discriminate or show the intent to discriminate on any unfair and/or illegal grounds. All comments which could be construed as discriminatory should be avoided. This includes questions which could be seen as carrying the potential intent to discriminate or uncover information which could be used for later discrimination. Questions such as:
  • “When did you graduate?”, or
  • “When did you begin your career?”
should be avoided as they carry the potential to discriminate based on age. Equally, questions such as:
  • “When are you planning to get married to your fiancé?”
should be avoided as they carry the potential to discriminate based on marital status. It is illegal for employers to discriminate against potential employees based on their sex, perceived gender, race, nationality, ethnic origin, marital status, disability status, age, or on any other unfair basis. The question of disability poses particular problems for interviewers. All questions relating to potential disability need to be worded extremely carefully and should involve how the interviewee could be accommodated within the context of the job as opposed to why the disability would exclude him or her. Employers now have a legal obligation to ensure that they do everything within reason to accommodate an individual’s disability within the context of the job available. Obviously certain characteristics will make an individual completely and justifiably unsuitable for a job (such as colour blindness or other forms of blindness in certain jobs, etc). Any contractual agreements made during the interview whether written or verbal need to be adhered to at all times. All employment-related offers of benefits and working conditions need to be kept after the interview and cannot be changed for any reason (such as the realisation that you cannot afford it).

Offers of Employment

Making an Offer of Employment and Legal Considerations

A contract of employment is formed when there is an offer of employment made between two parties, with certain terms and conditions, and an acceptance of these terms of employment by both parties. A contract of employment need not be written to be legally binding. Employers need to comply with equal opportunities obligations when making an offer of employment. The terms of a contract of employment may be written, oral, implied, or a mixture of any of the three. Either party could attempt to prove a contract existed in any of the following places:
  • The original job advertisement itself.
  • Any written correspondence including letters, emails, or written agreements between the employer and employees.
  • Any spoken agreements.
  • Existing company policies including those found on official websites.
  • Employee handbooks.
The Employment Rights Act 1996 states that all new employees who are employed for more than one month must be provided with a written statement setting out the main particulars of their employment within two months of such employment commencing (or earlier if, within this period, they are required to work overseas for more than one month). Such a written statement should include:
  • The name of the employer.
  • The address of the employer and the place of actual work.
  • The name of the employee.
  • The job title of the employee.
  • The date the employment began and the date that continuous employment began (for example if the employee has changed jobs within your business).
  • The details concerning how the employee will be remunerated including how much the employee will be paid, at what intervals (weekly or monthly, etc) the employee will be paid, and how the employee will be paid (bacs, cheque, cash, etc).
  • Details of any benefits including pension or medical aids.
  • Details of the employee’s holiday entitlements (including reference to bank holidays).
  • The expected hours of work for the employee (in consideration of the Working Time Directive regulations).
  • Details of any probationary period which may be applicable to the new employee.
  • Absenteeism procedures (including sickness and sick pay information, maternity/paternity leave).
  • Any collective agreements relevant to the contract (this is usually only applicable to larger organisations).
  • Details of disciplinary and grievance procedures.
  • Any legal conditions of employment such as the offer of employment being subject to the verification of satisfactory references, qualifications, work eligibility, and medical suitability.
  • A term stating that it replaces all previous discussions, correspondence, or agreements made in relation to the terms of employment, provided it is accepted by the employee.

UK Immigration Law and Policies

UK Immigration Law

The offer of employment should be made subject to the right of the employee to work in the UK being verified. Section 8 of the Asylum and Immigration Act 1996 makes it a criminal offence for any employer to knowingly employ an illegal immigrant. Keep in mind that only asking foreign sounding candidates to provide proof of their work eligibility will be in breach of Race Relations legislation and therefore, to avoid potential discrimination, all candidates should be requested to provide proof of their eligibility to work in the United Kingdom even if they obviously appear to be a British citizen. To comply with immigration law, employers need to:
  • Check the status of anyone they employ using valid documents (such as passports or birth certificates).
  • Check that the documents are real and do not show any obvious signs of being counterfeit.
  • Check that the documents are actually for the employee concerned and have not expired.
  • Make a copy of the documents to store with the personal details of the new employee. In terms of passports or relevant identity cards (only for workers from an EEA state) you should copy the front cover, the personal details page and the person’s photograph, the document’s expiry date, and the relevant visa or endorsement showing that the individual has the right to work in the UK.
  • Record the expiry dates of any visas or other documents to ensure that they do not continue to employ someone for longer than is allowed by the individual’s documentation.
Groups of people not subject to immigration control in the UK include:
  • British citizens.
  • Members of the Common Travel Area (the Channel Islands, the Isle of Man, and Ireland).
  • Commonwealth citizens with the right of abode in the UK.
  • EEA and Swiss nationals (however people from some of these states (“A8” countries) need to register with the UK Border Agency under the Worker Registration Scheme- see their website.
  • Immediate family members of EEA or Swiss nationals (as long as the EEA or Swiss national is lawfully residing in the UK).
Details of the various types of visa arrangements for individuals who need permission to work in the UK can be found on the UK Border Agency website located at UK Border Agency. Full-time students from outside the EEA and Switzerland over the age of 16 are permitted to work in the UK if they have been granted a student visa. People on a student visa may work only under certain conditions:
  • They cannot work for more than 20 hours per week (except during official term holidays, or where their placement meets the definition of a sandwich course or internship.
  • They cannot fill a permanent, full-time vacancy.
  • They cannot provide services of a professional sports-person or entertainer.
  • They have the necessary leave to remain and student visa which allows them to work in the UK.
Employing Someone on a Work Permit

Work permits are soon to be phased out under the UK points-based system. Employers need to apply to the UK Border Agency on the applicant’s behalf. If permission from the UKBA is received, employers are still required to ensure that the work permit applicant holds current leave to enter or remain in the UK (detailed in their passport or travel document). This endorsement needs to be obtained before the individual concerned begins their period of employment. The main types of work permits include:
  • The Business and Commercial work permit (used for hiring overseas nationals).
  • The Training and Work Experience Scheme (enables overseas nationals to undertake work-based training for the purposes or their qualification or a period of work experience).
  • Student internships (allows overseas students the opportunity of taking up an internship with a UK employer).
  • Sports and Entertainment work permit (for established overseas sportspeople and entertainers).
  • Sectors-Based Scheme (for Bulgarian or Romanian nationals only to fill specified posts within the food manufacturing sector).
The work permit holder is not normally able to transfer a work permit to a different employer. If the permit-holder wishes to change an employer, the new employer must apply for a fresh permit. The applicant cannot take up employment until both the work permit and current leave to enter/remain in the UK have been authorised by the UKBA. Employers need to fill out form WP1 (from the UKBA website) if they would like to employ someone who has already been granted a work permit for another employer. A recruitment search (proving that you have advertised the position) aimed at the resident work force is not necessary if the new employee will be doing broadly the same work as for his or her previous employer. If not, and the job will involve duties and responsibilities that are different, a search of the resident labour force will be required. Employers of people on work permits will need to notify the UKBA of:
  • Any changes to the address where the employee is employed
  • Full details of any business transfer which involves the employee
Employers who wish to extend an employee’s work permit need to fill out form WP1X which is also available from the UKBA website. Multiple Entry Work Permits cannot be extended (new applications are required). The Worker Registration Scheme This applies to individuals from the following EEA countries known as the “A8 countries”.
LatviaSlovakiaThe Czech RepublicLithuania
SloveniaEstoniaHungaryPoland
People from one of these countries are able to live and work in the UK but the UK government has set up the Worker registration Scheme (WRS) to monitor the participation of these nationals in the UK labour market. Nationals from one of these A8 countries that are not exempt from the scheme need to register themselves with the UKBA within one month of their employment commencing. They will require evidence of the employment (such as a letter or employment contract) and a £90 application fee (unless they do not already have a registration certificate). Employers need to take a copy of the employee’s completed application form and store it safely until official notification from the UKBA has been received in order to be able to provide a defence from a possible conviction for employing an unregistered worker. Employers who employ non-except, non-registered individuals from one of the A8 countries for more than 30 days without either a copy of their application form or registration certificate will be committing a criminal offence and could face a penalty of up to £5,000. Bulgarian and Romanian nationals are not covered under the WRS and need special permission from the UKBA to work in the UK.

Medical Examinations

Medical Examinations of New Employees

Certain roles may require certain levels of health in order for an employee to be able to adequately or safely perform the functions required. Even though potential employees are not obligated to undertake a medical examination, it would be within the employer’s rights to withdraw an offer of employment if such a refusal is made. Therefore any offer of employment should be subject to the employee undertaking a company medical if and when required and this should be included in the contract of employment. Employers need to obtain written permission from the employee prior to obtaining his or her medical report. Employees are within their rights to refuse such permission and are also able to request that the report be amended or objections to the report be attached. Changing an Existing Contract of Employment Employers need the prior consent of any employees for which they would like to change any of the terms of employment set out in the employee’s contract (or the employee will be able to claim breach of contract or resign and claim constructive dismissal).
Quick Guide to Changing Contracts of Employment
Reasons you may want or need to change an employee’s contract could include:
  • Financial issues - you may need to change the employee’s level of remuneration/benefits.
  • Time-related issues - you may need the employee to work more or less hours.
  • Work-related issues - you may need the employee to undertake different duties.
  • Location-based issues - you may need to transfer the employee to another location.
Employees may also wish to change their own contracts for:
  • More remuneration.
  • Better working conditions.
  • Different hours of work (such as changing to part-time).
  • The opportunity to transfer to another location.
Quick Guide to Changing Contracts of Employment
  • Ensure you know exactly what is in the original contract (even if the terms were never written down).
  • Familiarise yourself with both the implied and the express terms. Implied terms are those which may not have ever been mentioned because they may have been considered too obvious by both sides (such as an employee knowing that lateness will be unacceptable). Express terms are those which were specifically agreed by both parties.
  • Consult the affected employees. Inform them of the changes you would like to make and the reasons why. Changing the terms of a collective agreement with a trade union you recognise should always directly involve that trade union. Allow the employees concerned to provide input.
  • Companies with 50 or more employees are required by the Information and Consultation of Employees (ICE) to provide their employees with the right to be consulted about any significant changes or developments within the workplace.

Data Protection

The Data Protection Act

The Data protection Act 1998 applies to all personal information obtained about living, identified, or identifiable individuals. Information such as:
  • Names
  • Addresses
  • Bank details
  • Contact information
  • Personal history
Such personal information may be used by employers only where they meet all the conditions as set out in the Act (such as obtaining the employee’s permission).Certain information is classified as “sensitive” and employers are only able to obtain and use such information where they meet a narrower set of conditions for processing the information.This information largely relates to the following and illustrates again why employers need to take special care when asking employees questions at interviews or wording application forms:
  • Racial/ethnic origin
  • Political opinions
  • Disability status
  • Criminal history
  • Trade union affiliation
  • Religion
A key provision of the Act is that all information covered by the Act has to be used fairly and within the context of the various laws and regulations provided. Individuals should always be told exactly what the information will be used for and that they have the right to access the information at any time or have it amended if it is inaccurate. The Act basically works in two ways. Firstly, anyone who processes personal information must comply with the following eight principles which ensure the information is:
  • Both fairly and lawfully processed.
  • Processed only for limited purposes.
  • Kept adequate, to the point, and is not excessive.
  • Kept accurate and up to date.
  • Kept for the least amount of time necessary.
  • Processed in line with the individual’s rights.
  • Kept secure at all times.
  • Not transferred to other countries where it may be rendered insecure.
The second area provides that people have the right to find out what personal information of theirs is being kept and what is being done with it.

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