How do you know if they're “the one”?

Tuesday 10th March 2020

If you have a candidate that you feel is right for the job do not immediately offer them the job unconditionally. This can cause problems in relation to possible breach of contract claims if you change your mind because the candidate does not quite measure up when the checks are complete. Things that you may need to check include references, criminal records and qualifications especially if they are a specific requirement of the job. The best thing to do is make a conditional offer.

There is no express prohibition on an employer (or other organisation) asking a job applicant, an employee or worker, or a volunteer about their criminal record. Subject to certain exceptions, those who have been convicted of a criminal offence but who have not re-offended during a specified period from the date of conviction (the rehabilitation period) are considered to be rehabilitated and their convictions become “spent”.

Unless one of the exceptions applies, a person with a spent conviction is entitled to hold themselves out as having a clean record. Until that time, the conviction is “unspent” and should be disclosed in response to a question asking for details of the individual’s criminal record.

What if you have the perfect employee BUT they have restrictive covenants in their contract of employment with their old employer?

There are four main types of restrictive covenant:

● Non-solicitation

● Non-dealing

● Non-compete

● Confidentiality

As a new employer restrictions 1, 2, and 4 can be manageable by ensuring certain customers or activities are restricted for the duration the covenant. However, the difficulty is that where restrictive covenants have been imposed it is because the industry is one where being able to bring a following makes that employee an attractive new recruit.

The one that can cause problems is the non-compete clause as this means that they potentially should not be even working for you, although this is possibly the easiest of the four to argue is unreasonable and therefore unenforceable.

The risk to you is a claim by the old employer for “inducement to breach contract”. Very often undertakings are requested that certain customers will not be contacted during a specific period of time. These need to be carefully worded and you should take specific legal advice.

The difficulty here is that because the contract of employment will have been between the employee and their old employer unless the employee volunteers the information or your request to see a copy is complied with you might not know about any restrictive covenants. Warranties can also be very useful in this circumstance as well and if you have concerns should be supported by an indemnity.

The proof is in the pudding

Probation periods can be a useful tool and allow you to dismiss on shorter notice than the contract would ordinarily provide for should the employee not come up to muster. They normally last from 3 to six months and its common to have a provision to allow them to be extended is an employee is border line.

Any employee whose performance is suffering should be identified through the appraisal process and/or departmental reviews. The correct way of dealing with this is to carry out a capability procedure. Dismissing an employee for conduct when it is performance can cause you difficulties should there be a later tribunal hearing. You need to be mindful of whether there are any disability issues affecting performance and this will affect whether you can fairly take any action before having put in place any reasonable adjustments, even in a probationary period.