Pre-Contract

Overview

Pre-contract acts and discussion may be relevant in determining the terms of employment in the event of a later dispute. A job advertisement may form part to the contract of employment. The interview and what was discussed may be relevant.

If a person enters a contract in reliance on a false statement, either of fact or future intention, there may be a right to terminate the contract and in some cases, to sue for compensation.

Employment is sometimes confirmed, subject to preconditions. Some common preconditions are set out in the following sections. Other preconditions are discussed in other articles.


Pre-Conditions to Employment

Employment offers are sometimes conditional on obtaining a satisfactory medical report. This may arise from physical or mental job requirements. It may relate to membership of an insurance or pension scheme.

The employee may believe himself medically able to undertake a position, but the employer may take a different view.  It appears that the person undertaking a medical examination on behalf of the employer is not liable to the employee for negligence if the employee is refused the job, due to want of care in the examination. The courts have taken the view that only the person who commissioned it may rely on it from a legal perspective.

Closed shop employment requires that all employees be a member of a particular union. There is a constitutional right to associate and not to associate, which entitles an employee not to be compelled to join a union. Union membership should be agreed and documented if it is a requirement.

Pre-employment medical checks may be permissible where health or fitness is relevant to the position, An employee’s medical history is sensitive personal data under the Data Protection Acts so that the employee’s express written consent to obtaining this information is required.

Drug and alcohol screening raise issues of  duties under data protection and employment equality legislation.  A drug or alcohol addiction may be a disability for the purposes of disability discrimination legilsation in exceptional cases.


Other Checks

Employers may require immigration status confirmation where this is necessary to ensure that the candidate has the right to work in Ireland. The  verification must be necessary and proportionate to the legitimate aim of ensuring that the prospective candidate has the right to work in Ireland. The  employer must keep the particulars of an employee’s employment permit.

Employers may use social media to screen prospective employees. The better course is to inform prospective employees that their social media profiles may be reviewed.  Prospective employees should be given the opportunity to comment on the information obtained before a decision is made in relation to their employment. Employers must take care to follow  data protection and employment equality legislation.

It is common for employers to request proof of a candidate’s education and qualifications. Candidates may be required to provide copies of qualifications (eg, degrees), following a job offer. This information should come from the prospective employee.  If may not tbe obtained from the institution without consent. It must be for a legitimate disclosed purpose which is relevant and proportionate to the objective of ensuring that the prospective employee has the requisite qualifications to perform the role. It should be requested consistently from all candidates for a particular employment so as not to be discriminatory.

Identity verification may be appropriate. Data protection obligations regarding the retention of  records must be fufilled.


Employment Reference Issues I

It may be a requirement of appointment, that a reference be furnished by a previous employer. References may raise difficult legal issues. A reference will normally be privileged in a defamation context, but only if it is given in good faith. However, an inaccurate reference may leave its maker liable for damages for negligence, either to the prospective employer or to the employee.

There is no obligation to give a reference for an employee or former employee. There is no general entitlement on the part of an employee or former employee to a reference. In particular cases, the contract of employment may be interpreted as implying the right to reference. A reference may be given as part of the settlement of an employment dispute.

In the context of defamation, references may be privileged, provided that they are made on foot of an obligation, to a person who has an interest in receiving the same.  Provided that the statement is within the scope of the privilege, and is made in good faith, there is defence to defamation.


Employment Reference Issues II

If an employer does give a reference, then it is under a duty to provide a reference which is true in substance, accurate and fair. It must not be unfair or give a misleading overall impression.  If the employer misrepresents the true position, he may be liable for defamation to the employee or in negligence to the third-party.

There is likely to be an implied term in the employment contract to exercise reasonable care and or a duty of care in tort. The duty extends to the terms of the reference. It may require checking of the information on which it is based. It may be necessary to make appropriate inquiries and follow-up.  An employer should be especially cautious in making unfavourable statements without a proper basis and investigation.

A person who issues a reference owes a duty of care to the person to whom it is addressed and to the former employee. Some employers may give a mere outline of factual details in order to avoid the risks. The reference need not be complete and comprehensive.  It is sufficient if it gives a prospective employer a fair impression of the employee.


Employment Reference Issues III

Referenced raise Data Protection and confidntiality issues. The giving of reference should be the subject of consent from the employee. It may be given when the reference is sought. There may be contractual provisiosn in an employee handbook, although they may not continue to have effect.

From a prudential perspective. references should be limited to confirmation of the fact of employment, job title, a brief description of the employee’s duties and the dates of employment. It might be confirmed, if applicable, that this is company policy to provide  factual statement of employment only.

The reference must be accurate. The referee should keep a record of the time and date of giving the reference and keep a copy or a note of the reference given.

If the reference is personal, the employees providing it should make it clear to the recipient that he/she is providing the reference in a personal capacity and not on behalf of the company.


Vetting

Offers of employment are sometimes made conditional upon vetting.  Issues of fair procedures may apply where a negative vetting report is issued.  Because of the impact on their employment and good name, the employees may be entitled to challenge the information and go behind it.  Dismissal by reason of a prospective contravention of legislation may constitute potentially fair grounds for dismissal.

Persons who work with children and with vulnerable adults may require Garda Vetting. The Gardai have established a vetting unit, to undertake vetting for certain organisations in relevant sectors which register with them.   Persons who are to be vetted must a sign a consent form to the relevant organisation, in order to allow submission of a request to the vetting unit. The applicant must consent to the relevant disclosures.

It is an offence for a sex offender to seek employment or to perform a service, whether as private or State employee, which involves having unsupervised access to children or mentally impaired persons.

In certain industries, vetting is a legal requirement.  Persons operating child care services must vet staff and others who have access to children. Many activities which involve mentoring, coaching, teaching and training children and vulnerable adults are also subject to a statutory vetting requirement.


National Vetting Bureau Legislation

The National Vetting Bureau (Children and Vulnerable Persons) Act provides a general framework for vetting persons who seek to work with children and vulnerable adults.  The National Vetting Bureau (Children and Vulnerable Persons) database is established under the legislation. The Bureau maintains a register of registered organisations. Certain bodies whose employees work with children and vulnerable adults may apply for registration.

Vulnerable adults include adults who due to disorder of the mind, mental or intellectual disability or physical impairment, whether as a result of injury, age, or illness or a physical disability, have restricted capacity to guard themselves against harm caused by another person or who require assistance with daily living activities including eating, dressing, walking, bathing.

The Bureau may make inquiries for the purpose of its functions.  It may examine and vouch criminal records and take steps to identify the person concerned on foot of an application for a vetting disclosure.  Information may be disclosed, where the Bureau determines that the information gives rise to a bona fide concern that the person may harm a child or vulnerable adult or put any person at risk, or attempt to do so. The disclosure must be necessary, proportionate and reasonable in the circumstances, having regard to the purpose.


Sectors Covered by Statutory Vetting

Classes of employment and activities covered by the legislation include

  • schools, preschool services, hospitals and health centres;
  • designated centres;
  • residential care services;
  • work as a minister or priest
  • work as a driver carrying children;
  • accommodation of children in a person’s home;
  • research work in a third level establishment which involves access to children and vulnerable adults;
  • applicants for eligibility under the Adoption Act;
  • applicants for suitability as a foster parent or carer,
  • medical, nursing, midwives, dentistry,
  • social and healthcare professions,
  • pharmaceutical, nursing home,
  • care workers.

Certain bodies must notify information to the Bureau, including the Teaching Council, Medical Council, Nursing and Midwifery Board, Dental Council, Health Service Executive, Health and Social Care Professionals Council, National Transport Authority and the Health Information and Quality Authority. Where following investigation or inquiry, there is a bona fide concern that a person may harm children or vulnerable persons or cause them to be harmed, put them at risk from, the bodies are to notify the Bureau of their concern.


Spent Convictions

The Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 commenced on 29 April 2016. The objective of the Act is to clear the criminal record of any person who was convicted of certain types of minor offences, once seven years have passed since the date of the conviction. The conviction is a “spent” conviction.
A a person has been convicted of an offence that is now spent, he is entitled to answer by saying that he or she has no criminal convictions. The 2006 provides that the question shall be regarded as not applying to the spent conviction and the person may respond accordingly. The person shall not incur any liability or be otherwise prejudiced in law because he or she did not disclose the spent conviction or the circumstances of the  conviction”.
The Children Act 2001 provides, in effect that a person may choose not to disclose, certain convictions for offences committed while he was under the age of 18 years. The offences become spent after three years..

Discriminatory Advertising

The Employment Equality Acts outlaw discrimination in employment on certain grounds, including, in particular, family status, age, religion, race, disability, sexual orientation, membership of a travelling community.  Discrimination may be direct or indirect.

Indirect discrimination may occur where a requirement is made, with which it is more difficult for members of the protected class to comply, than for comparable non-members, which is not necessary and justifiable on legitimate grounds.

Where an advertisement uses a description for a job, which implies that the applicant should be of one gender, then it is required to be stated that the position is open to both genders.

An advertisement for a job may be directly or indirectly discriminatory if it demonstrates an intention to discriminate on a prohibited ground. Advertisements which mention or imply appointment on the basis of gender, age, marital status, etc. are likely to be discriminatory. Breach of this obligation is an offence.

An application may be made to the court by the Irish Human Rights and Equality Commission seeking an order that a person should not be appointed to a position, where the relevant advertisements have been made in contravention of the legislation.  An order may be made by the court for the determination of the matter by the Commission on a contemporaneous reference to it.


Exceptions under Equality Legislation I

There are exceptions from employment equality legislation in respect of recruitment for positions outside Ireland, where the custom in that place requires persons of one sex to undertake the duties concerned.  In some limited cases, gender may be a necessary qualification such as in acting.

There is an exception where due to the nature of the employment, it would be unreasonable to provide separate accommodation and accordingly accommodation is provided on a communal basis for both genders.

With regard to employment in the Garda Sıochana or the prison service, positions may be assigned to persons of one gender where this is essential

  • in the interests of privacy or decency;
  • in order to guard, escort or control violent individuals or quell riots or violent disturbances, or
  • in order, to disarm or arrest violent individuals, to control or disperse violent crowds or to effect the rescue of hostages or other persons held unlawfully or  prevents the application of one criterion as to height for men and another for women, if the criteria chosen are such that the proportion of women in the State likely to meet the criterion for women is approximately the same as the proportion of men in the State likely to meet the criterion for men.

Exceptions under Equality Legislation II

An employer is not obliged to recruit or employ a person who cannot or will not undertake the duties attached to the position or accept the conditions under which the duties are required to be performed.

An employer is not required to recruit an individual if he is aware that he has a criminal conviction arising from unlawful sexual behaviour or has reliable information that the person has a propensity for such behaviour.

A religious, medical or educational body or institution, under the control of a religious bodies or established for purposes which includes the provision of a service in an environment which promotes certain religious values, may give more favourable treatment, on the religion ground, where it is reasonably necessary in order to maintain the religious ethos of the institution. It may where reasonably necessary, take steps to prevent an employee or prospective employee from undermining that ethos.

It is not discriminatory on the age basis to require or set a maximum age where the cost of training pre-retirement so justifies. It is lawful to impose conditions in respect of citizenship, residence and competence in the Irish language, in respect of employment in the civil service, Garda Síochána, Defence Forces and certain other public bodies. It may be required that persons have a particular educational qualification, provided that this is a genuine requirement of the position.


Exceptions under Equality Legislation III

Questions may be put which are or might be construed to be discriminatory, provided that they are strictly necessary.  Questions bearing on gender or marital status may be permissible if there is a good and objective reason.  There is a risk, however, that any such questions may be construed as exhibiting discrimination or potential discrimination and that the reason is not indispensable.

It may be unlawful discrimination, explicitly or implicitly to prefer a candidate of one category over that of a protected category or in differentiating between persons on the basis of membership of one of the protected categories. Things said or done in the course of an interview constitute discriminatory behaviour or suggest an intention to discriminate. Questions asked of candidates of one category and not of those of another, may be discriminatory.  Best practice requires that standard non-discriminatory criteria should be applied.

An employer is entitled to assess the ability of the candidate to do the job, subject, where appropriate, to any requisite training.


Disabled Persons

Persons with disabilities are to be regarded as competent, where they would be able to undertake the duties if appropriate measures were taken by the employer. The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability to have access to employment, to participate or advance in employment, or to undergo training.

The requirement applies unless the measures would impose a disproportionate burden on the employer. In determining whether the measures would impose such a burden, account shall be taken, in particular, of the financial and other costs entailed, the scale and financial resources of the employer’s business, and the possibility of obtaining public funding or other assistance.

“Appropriate measures’’ in relation to a person with a disability means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned. It includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources.

It does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself; with the provision of special treatment or facilities provided. The employer shall provide reasonable treatment and facilities for such purpose.