Selecting and appointing
- Making the selection decision
- When to make the decision
- Deciding to appoint
- Making an offer
- Conditions in individual employment agreements
- Offers and employment agreements for part-time, casual and fixed-term employees
- Offers including a trial or probation period
- Reaching agreement on an offer
- Avoiding a claim of unfair bargaining
- Dealing with unsuccessful applicants
Making the selection decision
Selecting the most suitable applicant involves ranking each applicant against the needs of the job and the personal attributes you originally identified.
It is often wise to do this in two stages:
- Which of the applicants are appointable?
- Overall, which applicant has the closest mix of skills and personal attributes for the job?
If you have produced a job description and personal profile dealing with each component, obtaining an overall mark is a good method.
Even if you haven’t produced a formal document, listing the top four or five issues for your business and marking the applicant against them is a way of ordering your thoughts.
It can also be a way of identifying the key issues you want to raise when you check references. Test that the referee has a similar feeling for the applicant’s strengths and weaknesses, and probe more deeply in areas where you are uncertain.
Be careful that any ranking system you use is fair. Avoid considerations that amount to unlawful discrimination under the Human rights Act. Information about the Act is available on the Human Rights Commission website.
When to make the decision
It is not advisable to make a snap decision about offering an applicant a job during the course of an interview. Taking time to compare applicants and checking with referees will lead to better decisions.
When you make a selection decision, remember that, if a challenge is later taken by an unsuccessful candidate (for example, on the grounds of discrimination), documentation relevant to the appointment process and decision may have to be disclosed.
In the public sector, internal applicants may also have a more general right to challenge appointment decisions.
Deciding to appoint
Remember, you are not compelled to actually make an appointment. if the applicants are not of a suitable standard, or if circumstances change during the recruitment process and you do not now need a new employee, you can simply decide not to offer any of the applicants a job.
How to deal with references is covered below.
Making an offer
When you have decided on your preferred candidate, the next step is to formally offer them the position and also offer them an employment agreement.
This should be done in writing, but often an initial telephone call is convenient to indicate that you are about to make the offer.
From the first contact, whether by phone or letter, you are effectively commencing the employment relationship, with all the legal protections around that relationship.
The process varies depending on whether there is:
- no relevant collective agreement in place
- a collective agreement covering the work to be performed, and the applicant is a member of the union concerned
- a collective agreement covering the work to be performed, and the applicant is not a member of the union concerned.
If there is a collective agreement in your workplace, it may be advisable to request information on union membership at the interview. However, you should take care to make it clear that the purpose of the question is to guide you in the process around any job offer.
If there is no relevant collective agreement that covers the work to be performed by the new employee, then you may enter into an individual employment agreement. In order to do this, you must:
- provide the job applicant with a written copy of the proposed agreement
- advise them that they:
- are entitled to seek independent advice about the agreement and its terms
- are invited to respond to the proposed agreement
- have a reasonable opportunity to seek that advice. (What is reasonable will depend on the circumstances. it can be helpful to agree with the employee in advance how long they anticipate they would need in order to take advice.)
Draft letters that can be used as a guide are available on the Department of Labour’s website or phone 0800 20 90 20.
The applicant may respond to the offer and proposed agreement by:
- accepting your offer
- rejecting your offer
- indicating they wish to accept the offer but wish to discuss changes to the proposed individual agreement.
You are required to consider any changes they wish to negotiate, and respond to their suggestions.
You are not required to agree to any or all of their proposals.
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Conditions in individual employment agreements
When an individual employment agreement is to be offered, it must be in writing. This ensures that there is a clear and mutual understanding of the terms and conditions on which employment has been offered, and can help to prevent later disputes.
The Employment Agreement Builder can guide you through developing your employment agreement.
Individual employment agreements are required to contain the following core terms:
- the names of the employee and the employer
- a description of the work to be performed
- an indication of the place and hours of work
- the wages or salary payable
- the right of the employee to receive at least time-and-a-half if they work on a public holiday
- a plain-language clause explaining the services available for resolving employment relationship problems.
For most employees, there must also be a clause covering the rights of the employee on the sale or transfer of the business, or if work is contracted out.
Some employees undertaking work such as cleaning and food catering have different rights in this area. Information about those employees and their rights is available on the Department’s website or phone 0800 20 90 20.
Individual agreements cannot contain terms that are unlawful, for example:
- a wage rate that is less than the relevant minimum wage
- annual holiday, public holiday, sick or bereavement leave entitlements less than an employee’s rights under legislation
- anything that removes an entitlement under the Employment Relations Act.
You are also required to tell the employee about their rights under the Holidays Act 2003. This requirement can be met by including these in the employment agreement. It is important that these rights can be clearly understood by the employee. You will need to tell your employee about any policies for part or all of your business such as “cashing up annual leave” or “transferring public holidays to another day”.
The Employment Agreement Builder tool includes examples of terms of employment that are typically dealt with in an agreement, such as:
- leave entitlements
- meal and rest break entitlements
- how the employee’s salary or wage rate is calculated, and when salary/wage reviews will be carried out
- how the wage or salary will be paid (such as by cheque or direct credit) and when (such as in arrears or in advance)
- what other benefits the employee is entitled to, such as a tool allowance, a clothing allowance, medical insurance or superannuation
- what training will be provided
- health and safety obligations of the parties
- notice periods (for resignation, redundancy and the like)
- trial or probation periods
- variation provisions
- confidential information and restraints applying after termination.
It is important to ensure that the agreement records all the agreed benefits that the employee will be entitled to. If any assurances were given in the interview stage, then it is also wise to clearly record those assurances in the written agreement.
Offers and employment agreements for part-time, casual and fixed-term employees
i. Part-time jobs
The process of offer and consideration of employment agreements for part-time jobs has to comply with the same requirements that apply to full-time employment. The obligations on employers that are discussed in the previous sections therefore apply.
ii. Casual jobs
The process of offer and consideration of employment agreements for casual jobs has to comply with the same requirements that apply to full-time employment. Casual employees generally have similar minimum employment rights as other employees.
In some circumstances, the expectation of the time available to consider and discuss a casual position will be less where the employment is immediate in nature or the employee has been employed previously for similar work.
Also, where the employee’s employment is so irregular or intermittent that it is not feasible to provide for four weeks’ annual leave, the employee can be offered holiday pay on a “pay as you go” basis. This needs to be explicitly agreed to in the employment agreement, and the payment must be recorded separately in wage records at a rate of at least 8%. More details are on our Holidays and leave section or phone 0800 20 90 20.
iii. Fixed-term employees
The process of offer and consideration of employment agreements for fixed-term jobs has to comply with the same requirements as permanent employment. Fixed-term employees generally have similar minimum employment rights as other employees.
Additionally, a fixed-term individual employment agreement can be entered into only if you have genuine operational reasons based on reasonable grounds for seeking a fixed-term. such reasons could include situations where:
- you require a replacement for another employee who is absent on long-term sick leave or parental leave
- the work in question relates to a one-off project
- the work is seasonal.
A clause outlining the reasons for and period of the fixed-term agreement must be included in the employment agreement.
Where the fixed-term agreement is for less than 12 months, the employment agreement can provide for annual holiday pay to be made on a “pay as you go basis” if the employee agrees. This needs to be explicitly provided for in the employment agreement, be no less than 8% of the hourly rate, and must be shown as a separate item in the employee’s pay slip. More details are on our Holidays and leave section or phone 0800 20 90 20.
Failing to comply with requirements relating to fixed-term agreements could affect your ability to end the employment at the expiry of the fixed-term, by entitling the employee to treat the employment as continuing.
Offers including a trial or probation period
From 1 April 2011 all employers will be able to employ new employees on a trial period of up to 90 calendar days.
Any trial period that you agree to with a new employee must be agreed to in good faith and in writing as part of the employment agreement. You and the employee must both bargain in a fair way about a proposed trial period. This includes considering and responding to any issues raised by the new employee.
You may only agree to a trial period with an employee if he or she has not previously been employed by you.
If you have concerns about the performance of an employee during a trial period, then you should raise them with your employee.
If any employment relationship problem arises during the trial period, or if the employee is dismissed, the employee and the employer can access mediation services.
An employee who is given notice of dismissal before the end of a trial period cannot raise a personal grievance on the grounds of unjustified dismissal. He or she may, however, raise a personal grievance on other grounds, such as discrimination or harassment or an unjustified action by the employer that disadvantaged the employee.
If you agree to a trial period with your employee, this does not affect his or her entitlements to holidays and leave.
Employers can agree to a probation period with new employees.
Employees during and at the end of their probation period have similar minimum employment rights as full-time employees.
The process of offer and consideration of employment agreements has to comply with the requirements for permanent employment when you are offering someone a position involving a probation period.
Any probation period that you agree to with a new employee must be agreed to in good faith and in writing as part of the employment agreement before employment starts. You and the employee must both bargain in a fair way about the probation period. This includes considering and responding to any issues raised by the new employee.
If you wish to have the first part of the employment relationship as a probation period, you must record the probation period in writing in the employment agreement, including its duration.
Realistic expectations for the probation period should be clearly specified in writing either in the letter offering the position or in the employment agreement.
The use of a probation period does not affect the right of employees to be treated fairly and reasonably before any decision is made to dismiss them.
You should use the same processes and take the same care in managing the probation period that you would take if you were performance-managing a permanent employee with a performance issue.
Good performance should be recognised and recorded, but where an employee is not performing to the expectations you have clearly set out for them, you should discuss your concerns with the employee, and provide reasonable guidance and assistance to support their improved performance.
If you have promised specific training or support, this should be provided, especially where this is intended to help the employee to improve.
Any review or feedback commitments you make at the beginning of the probation period should be adhered to strictly.
Reaching agreement on an offer
When you have reached a final agreement on the appointment, you and the employee should both sign a final offer of employment and the employment agreement.
It is useful to include in the agreement an acknowledgement by the employee of the process and their understanding of it.
Here is an example of an acknowledgement
The Employee acknowledges that:
- they have been advised of their right to take independent advice on the terms of this agreement
- that they have been provided with a reasonable opportunity to take that advice
- that they have read these terms of employment and understand these terms and their implications, and
- that they agree to be bound by these terms of employment and the Employer's policies and procedures as implemented by the Employer from time to time.
Avoiding a claim of unfair bargaining
The Employment Relations Act seeks to ensure that new employees have the opportunity to discuss and agree their proposed terms of employment in a good faith environment.
An employee can take a claim against you if the bargaining that occurred over the terms of their individual employment agreement was unfair.
Unfair bargaining is defined as including situations where the employee:
- was unable to understand what the agreement said or meant because of a diminished capacity caused by, for example, age, sickness, mental or educational disability, a disability relating to communication, or emotional distress
- reasonably relied on your skill, care or advice, or that of your representative
- was induced to enter into the agreement by oppressive means, duress or undue influence
- was not given a reasonable opportunity to seek independent advice about the agreement before entering into it.
Maintaining a good record of the offer and acceptance, including correspondence and draft agreements, can assist you in responding to an employee’s claim, should one occur.
If you and an employee are unable to resolve a problem about unfair bargaining through direct discussion, either you or the employee has the option of seeking assistance from the Department of Labour’s mediation services or using a private mediator.
If the matter is not settled satisfactorily at mediation, there is the option of bringing a claim before the employment relations Authority.
If the Authority agrees that the bargaining was unfair, it can award compensation, and if it considers that any remedy other than variation or cancellation is inappropriate or inadequate, it may cancel or vary the agreement.
Dealing with unsuccessful applicants
You have a responsibility to handle information gathered about unsuccessful applicants in a confidential manner. This includes:
- letters of application
- curriculum vitae
- application forms
- interview notes.
You should either:
- retain the information in a secure place (if the applicant wishes you to do so in order to be considered for future vacancies), or
- return any items provided by the applicant and retain the rest, or
- retain the information securely for a set period, in case of follow up by the applicant, and then destroy it.
When you have made an appointment or decided not to fill the vacancy, it is good practice to confirm to applicants that their application was unsuccessful.