May 11, 2022

Twelve frequently asked questions when recruiting staff

During what is being dubbed as ‘The Great Resignation’, many employers are having to recruit new members staff. But how sure are you that what you’re doing is legally compliant?

We’ve listed these twelve common questions that employers often ask us when looking to take on on new employees.

1. Can I ask candidates to complete a medical questionnaire when applying for a vacancy, or question them about their health at an interview?

Only when you make an offer of employment is it safe to ask about a candidate’s health. You can read more about this in our article on can you ask an employee about their health?

2. Do I need to conduct Right to Work checks for candidates who say they’re UK citizens?

Yes. you should obtain, and retain copies of, Home Office compliant evidence to establish the right to work for every new starter.

3. Should I issue the written terms/contract of employment if I’m making a conditional offer?

If you send out written terms/contracts of employment documents with a conditional offer you may invalidate the conditionality of the offer and establish a contract. Should you then decide not to proceed, you may actually have to dismiss the individual.

We advise you to issue a non-contractual job description that’s entirely separate from contractual written terms.

4. When do I issue new starters with their written terms/contract of employment?

Many employers think that they have two months to issue starters with their contract of employment, however, the Government changed this rule over two years ago. Now you have to issue written terms on day one of employment.

5. Do casual workers need written terms?

Yes, even if someone will only undertake a one-day assignment for you, casual workers are entitled to appropriate written terms.

6. Can I engage an intern without paying them or require a new starter to undertake trial shifts without pay?

No, all work must normally be paid at or above the National Minimum Wage. There are very few exceptions to this rule.

7. Should I make a job description contractual?

If you link the job description to the written terms/contract of employment, it will potentially make those duties and responsibilities more difficult to change. We advise you to issue a non-contractual job description that’s entirely separate from contractual written terms.

8. Should I add discretionary benefits to the written terms/contract of employment?

Any benefits you write in the terms or contract are likely to adopt contractual status and be more difficult to change or remove. Where you may want to vary or remove benefits from time to time, don’t add them to contractual written terms.

9. Can I engage someone to work for me abroad?

You can – at least in theory. However, you must still ensure you fulfil all work visa obligations for that country and comply with their domestic employment laws. You can’t safely rely on your UK terms alone.

10. Can I ask my new starter to use their vehicle for work?

If it’s just to get to and from their workplace, that’s normally covered by their insurance. However, if you want them to visit clients, make deliveries etc. then they must have relevant business cover.

11. Can I operate a ‘rolling’ contract indefinitely?

No, you must be specific about the duration of all employment. Is it of indefinite or limited duration? Employment Tribunals will assume employment is permanent after four years – irrespective of what the written terms may say.

12. After someone retires, can they do some work for me on a self-employed basis?

There’s a significant risk here. HMRC may conclude they still retain employed status – even if the role is entirely different. You must satisfy yourself that the individual is genuinely classed as self-employed.

We hope this helped you brush up on some questions many employers have about recruitment. If you’re looking to hire, you might also want to work on retaining the talent you have in your business. If so, check out our articles on how to build an employee experience that improves retention and talent retention: five top tips for reducing employee turnover.

If you want to speak to a professional about employment law, you can sign up to our HR Services where our subject-matter experts are on hand to support you.

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About the author

Mike Fitzsimmons

About the author

Mike Fitzsimmons

Mike is a Senior HR Consultant within the Moorepay Policy Team. He is responsible for the developing of employment documentation and is an Employment law advisor. With over 30 years of senior management and HR experience, Mike has managed teams of between 30 and 100 employees and is familiar with all the issues that employing people brings. He has also served as a non-executive director on the Boards of several social enterprises and undertook a five year tour of duty as Executive Chair of a £30+ million annual turnover Government agency.

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