We regularly assist clients with employee recruitment and appointment processes by drawing up contracts of employment and by reviewing already existing contracts. In addition, we have considerable experience of negotiations dealing with competition and customer clauses.
We regularly assist clients with employee recruitment and appointment processes by drawing up contracts of employment and by reviewing already existing contracts. In addition, we have considerable experience of negotiations dealing with competition and customer clauses.
An employer in need of labour usually meets this need by appointing someone to a position. Alternatively, the employer is able, under certain conditions, to outsource services, hire staff from an employment agency, or re-allocate some of the company’s existing workforce to other tasks.
The employer is relatively free to choose and appoint employees as this right is part of an employer’s management prerogative.
As far as the appointment of employees in the private sector is concerned, the governing provisions are found in Chapter 14 of the Working Environment Act. This chapter sets out, inter alia, the restrictions applying to recruitment processes, and the stipulations governing contracts of employment, forms of employment, as well as the alternatives to appointment when meeting one’s labour requirements.
An employer is relatively free to make the appointments of his choice, albeit with certain restrictions. In both the private and the public sector there is a general prohibition on discrimination, for example on grounds on gender identity or expression, ethnicity, religious belief, political views, sexual orientation etc. Furthermore, in the private sector an enterprise may well be bound by a collective agreement that gives certain employees the preferential right to a new position, thus limiting the employer’s sphere of action. This also means that a former employee, made redundant in a workforce reduction, has a preferential right for one year to a position for which he or she is qualified; part-time employees will have a preferential right to a permanent position; and employees on reduced working hours’ contracts have a preferential right to work a greater number of hours. Preferential rights also apply when an undertaking is transferred to new ownership. Public sector employers must also be aware that appointments must take place in accordance with the so-called qualification principle, which states that the best qualified applicant shall be appointed to the position in question. Moreover, such an appointment is an individual decision governed by the Public Administration Act, the provisions and principles of which must be complied with.
As far as actual appointment is concerned, the main rule is that an employee shall be appointed to a permanent position. Under certain conditions, however, other forms of appointment may be chosen. An employer’s appointment options are as follows: employment in a permanent full-time position; employment in a permanent part-time position; temporary employment (temporary position, engagement, work experience) as well as temporary employment in a part-time position.
The scope of an employment relationship shall be set out in a written contract of employment. Section 14-6 of the Working Environment Act lists the minimum requirements a contract of employment must include.
The contract of employment is a key element in the continuing workplace relationship. It lays down the individual rights of the employee and can thereby place limitations on the decisions an employer may make on the basis of management prerogative. Furthermore, it is the contract of employment that sets out the duties, demands and expectations that can be made of the parties in the continuing workplace relationship. The contract of employment may also be important with respect to termination of employment and, for example, it can bind an employee leaving a company by means of competition and customer clauses.