One issue that can arise when recruiting is: when is the deal actually done? When can the employer confidently say “yes we have got the person we wanted”? When can the candidate go out and celebrate having scored their (hopefully) dream job?
As this article has been written with ProgressionHR in mind, I could say not to worry, just trust Kelly and Laura and they will sort everything out for you. However, just in case you have not utilised their services (I can’t imagine why not) here are a few important points to remember.
The Technical Stuff
Section 5 of the Employment Relations Act 2000 which is the Interpretation section of the Act says an “Employee” is defined in section 6. Section 6 tells us that an employee includes “a person intending to work”.
Who then is “a person intending to work”? Most of us could probably say that at some stage we have been, or are, “a person intending to work”, (even if that intention only lasted momentarily). Does this mean we were an employee whilst that intention lasted, and when we no longer had that intention we were no longer an employee? Can a person become an employee just by willing themselves to want to work?
Not surprisingly, the answer to both questions is no. Helpfully, the Employment Relations Act has a definition of a person who fits this description. If we go back to the definitions section we find that a “person intending to work” means “a person who has been offered, and accepted, work as an employee; and intended work has a corresponding meaning”.
The effect of this definition is that a person can be an employee even if they have not turned up for work. So long as a person has been offered and accepted work as an employee then they are an “employee” never mind they may not actually turn up.
The next question that arises is when has a person been offered and accepted work. If a candidate is told “congratulations we would like to offer you the job” and they say “great” have they been offered and accepted work as an employee? What happens if a person is told something like this and then they are sent an employment agreement and they don’t agree with it and don’t want to sign it?
The Suggestion
These and many other questions can arise unless there is a very clear process around making an offer and how it is accepted. My suggestion is that whenever a company wants to offer employment they should always make it clear that the offer is subject to, or based on, the employment agreement. This means the company’s offer is set out in the employment agreement and the employee must agree to the terms of employment agreement in order to have “accepted” the company’s offer.
If this is done the process is fair for both the candidate and the company. The candidate has the opportunity to read the employment agreement and talk to the company if they have any questions before signing and accepting the offer while the company knows that when they receive the signed employment agreement the candidate has accepted all their terms and conditions of employment.
By Paul Wallace.
Paul Wallace is the Director of Wallace & Associates Limited – specialising in employment law and human resources. Paul practiced as a Barrister and Solicitor for 9 years, appearing regularly in the Family District and High Courts before developing a specialist interest in employment relations. Having resolved countless employment disputes, Paul’s advice is invaluable for both the employer and the employee.
Find out more here.
