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Pre-employment checks: data protection issues

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  • Advantages of pre-employment checks

    Making pre-employment checks to comply with the law.

    Pre-employment checks are an important part of the recruitment process.

    They help you to:

    • comply with the law by ensuring the employee has permission to work - and remain - in the UK and has not been barred from carrying out the job - eg for roles working with vulnerable groups or holding the position of director
    • check that the potential employee is suitably qualified or skilled for the job
    • assess whether the potential employee is suitable for the job - eg for roles working with vulnerable groups or security roles
    • check that the employee is able to carry out the job - though you must ensure you do not discriminate in breach of the Disability Discrimination Act 1995

    Types of checks

    There are a range of checks you can carry out, some of which are compulsory and others which may be desirable. These include:

    You must ensure your checks are not discriminatory (for example, a health check that discriminates against disabled people and is not necessary for the job) and do not discourage people from applying for the job. For more guidance, see how to prevent discrimination and value diversity.

    You can make any job offer conditional on the outcome of pre-employment checks.

    A conditional job offer does not become a binding employment contract until both parties have agreed to it and can be withdrawn if the conditions are not met. See withdrawing job offers where checks are not satisfactory.

    You should carry out your checks as quickly as possible once a conditional offer has been made.

    Protective security guidance

    The National Protective Security Authority (NPSA) provides protective security advice. This is for companies and organisations that deliver the UK's essential services.

    Read NPSA advice on employment screening job applicants.

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  • Pre-employment checks: identity checks

    Why you should check a candidate's identity and how you can go about it.

    The first check you should carry out is to confirm the identity of the candidate and establish that their identity is genuine.

    You should not undertake any other checks until you are satisfied that the candidate is who they claim to be.

    How to check a person's identity

    You can check a person's identity by:

    • requesting original copies of documents - such as passports, birth certificates, and driving licences
    • asking for copies of documents that confirm the person lives where they claim they do - eg provide a recent bank statement or utility bill with their name and address on it
    • requesting a Certificate of Registration, or a Biometric Residence Permit, and/or immigration documents where relevant
    • using a commercial online database checking service

    Whilst these checks can prove that an identity exists, they cannot prove that the identity rightfully belongs to the person using it. You should back up any electronic check by obtaining original documents to support the claim.

    Job offer templates from Acas including a pre-employment checklist template.

    The HM Passport Office has introduced a number of measures to help employers check for identity fraud.

    Read more on the HM Passport Office's responsibilities and priorities.

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  • Pre-employment checks: checking references

    How and when you should check references.

    Although not compulsory, it is advisable to check a potential employee's references.

    You can do this in writing or by telephone at any point during the recruitment process. Some candidates will prefer you not to check their references until they have been offered the job, and you should seek their consent before any referees are contacted.

    There is no automatic right to receive a reference from a previous or current employer, except for roles in organisations covered by the Financial Conduct Authority and the Prudential Regulation Authority. The easiest way to obtain references is in writing.

    References should give facts such as start and end dates, job title, salary, and sickness absences (excluding any absence related to a disability or parental leave).

    You may wish to follow up on the information disclosed by having an informal conversation with the author of the reference, or the previous employer. Asking specific questions can disclose additional information, for example, details on the employee's performance, integrity, relevant personal information, and reasons for leaving. However, caution should be taken as to how any additional information is interpreted. After an informal conversation, good practice suggests:

    • Any information provided should not be used as a substitute for you making your own judgement about employment.
    • The information should be weighed against all evidence received during the recruitment process, making a balanced decision that takes into account all available information.
    • Consideration as to the context and circumstances of the information provided, should be carried out as circumstances can change. It may be appropriate to involve the potential employee in this consideration.

    Are references confidential?

    Generally, employees do not have the right to ask their employer to see a job reference that the employer has written about them which has been given in confidence. However, they may be able to gain access to it from the person the reference is sent to, so you should not assume a reference will stay confidential.

    Individuals may also be able to access notes made about them during a telephone reference as well as any notes you make during and after their interview.

    Read Information Commissioner's Office (ICO) guidance on your right of access to your personal information.

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  • Pre-employment checks: checking qualifications

    How and when you should check qualifications as part of your pre-employment checks.

    As well as looking at references, you should also check the candidate's qualifications, especially when the qualification is essential to the position you want to fill. In some professions, candidates must be in possession of specific qualifications before they can practice.

    You can check qualifications by asking to see the candidate's certificates. Alternatively, you can check with the awarding bodies or use one of the checking services.

    The Council for Curriculum Examinations & Assessment (CCEA) has details of the qualifications it accredits. Information is also available about the competence and performance levels they are based on. Read CCEA guidance on post-16 qualifications.

    UK ENIC is the UK national agency for international qualifications and skills and can help you compare overseas qualifications with UK equivalents. Compare overseas academic qualifications (registration required).

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  • Pre-employment checks: health checks

    Anti-discrimination and data protection considerations when asking candidates to complete a health check.

    You may wish to include health checks as part of your recruitment process. A health questionnaire may ask about individual and family history and lifestyle. They can highlight potential problems requiring a follow up - eg by a medical examination.

    Questions about disability and health during the recruitment process

    You should take great care when asking about a job candidate's disability or health concerns. You should ensure that you seek this information for the right reasons and not in order to discriminate against disabled people.

    The Equality Commission suggests giving job candidates the opportunity on an application form, or on a monitoring form, to indicate any relevant effects of a disability and to suggest any reasonable adjustments which may help them overcome any disadvantage in their potential workplace.

    You have an obligation, under the Disability Discrimination Act, to make reasonable adjustments for disabled employees or applicants at all stages of the recruitment, selection and employment process.

    Read Equality Commission guidance on hiring new staff.

    Asking a question about disability is not in itself discriminatory. However, your conduct following the candidate's response could lead an industrial tribunal to conclude that you have carried out a discriminatory act.

    When to carry out pre-employment health checks

    You should only complete pre-employment health checks:

    • once you have offered the job to a particular person
    • where any candidate - disabled or not - would be required to undergo testing to decide if they are fit to carry out the job
    • where testing is needed to meet any legal requirement - eg eye tests for commercial vehicle drivers
    • when you are sure you need this information and have policies in place to securely hold the information as required by the Data Protection Act, regardless of whether it is in paper or electronic form

    The level of assessment will depend on the nature of the job and can range from simply checking the levels of absence in a previous job to a full health assessment.

    If you are making a job offer conditional upon the candidate's fitness for the work, this should be stated clearly in the offer letter.

    You must ensure you are not carrying out discriminatory practices in asking potential employees to pass a health check. Health checks - if required - should be carried out on all candidates to avoid unfairly discriminating against disabled candidates. For further guidance, see how to prevent discrimination and value diversity.

    You may be required to pay a fee for a medical report from a candidate's GP. The candidate must give you their written consent before you request a medical report.

    Candidates have the right to see the report and can request that it is amended or withheld from you. Even without the candidate seeing the report, the doctor must keep it for 21 days before sending it to the employer.

    Alternatively, an employer may refer a prospective employee to occupational health. The employer must seek the candidate's consent before referral and the employer should pay for the referral.

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  • Pre-employment checks: applying for a criminal records check

    How and when to request an AccessNI check, the application process, and how to use the information provided.

    You can apply for a criminal records check for the potential applicant from AccessNI. This is usually required when people are working regularly with children or vulnerable adults or, for example, as part of the taxi driver licensing regime in Northern Ireland. The Security Industry Authority also carries out a criminal record check on anyone who applies for a security licence.

    It is important to ensure that a position is eligible for an AccessNI check before starting the process. Eligibility is governed by the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 (as amended). You should contact AccessNI if you are unsure whether a position is eligible for a check.

    Criminal records checks should not be requested until a job offer is made, but you should make it clear, in writing, that the job offer is conditional upon a criminal records check.

    There are three types of criminal records check - basic, standard and enhanced. Legislative provisions may require that either a Standard or Enhanced Disclosure is requested for someone commencing employment in certain sectors. The type of check you will need to make will depend on the work that is to be undertaken.

    The Disclosure and Barring Service (DBS) helps employers in Northern Ireland make safer recruitment decisions. The main criminal record checks are now called a DBS check. A DBS check is only necessary for certain types of jobs involving vulnerable groups eg working with children, in healthcare, prisons and courts. The DBS was established in 2012 and carries out the functions previously undertaken by the Criminal Records Bureau and the Independent Safeguarding Authority. It is accessible through AccessNI.

    For more information on each type of check, see AccessNI criminal records checks.

    Avoiding discrimination

    Once you have received your copy of the AccessNI disclosure certificate, you can assess whether the candidate is suitable for the job. An AccessNI disclosure will reveal previous convictions. Generally, under the terms of the Rehabilitation of Offenders (Northern Ireland) Order 1978, someone convicted of a criminal offence who does not receive any further convictions during 'the rehabilitation period' becomes a rehabilitated person. Their conviction is regarded as spent - therefore after a certain period of time, you should treat the person as if the conviction had not happened.

    However, a conviction resulting in a prison sentence of more than two and a half years can never be spent.

    A person must disclose all convictions - including spent ones - if the job offered falls into an exempted category according to the Rehabilitation of Offenders (Northern Ireland) 1978, including:

    • regular contact with children and vulnerable adults
    • accountancy
    • work as a barrister
    • police work
    • posts relating to the administration of justice or financial regulation
    • posts involving national security

    Whether the conviction is spent or unspent, you should carefully weigh a number of factors, including:

    • how long ago the offence was committed
    • the candidate's age at the time
    • the relevance of the offence to the job offered
    • the penalty awarded
    • whether the offence was isolated or part of a pattern of offending
    • what is known about the person's behaviour before and since

    People should not be unfairly discriminated against due to past convictions. You should also give the candidate a chance to explain if a check reveals adverse information about them.

    For details of your legal obligations when applying for AccessNI checks and using the sensitive personal information on a certificate see employing someone with a criminal record.

    Read employers' guidance on recruiting people with Northern Ireland conflict-related convictions.

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  • Pre-employment checks: ensuring candidates are eligible to work in the UK

    Preventing illegal working - the checks you must make, who is eligible for work and who needs permission.

    A new immigration system applies to people arriving in the UK from 1 January 2021. EU citizens moving to the UK to work will need to get a visa in advance. Employers need a sponsor licence to hire most workers from outside the UK. See right to work checks: employing EU, EEA and Swiss citizens.

    All employers in the UK have a responsibility to stop illegal workers. You must therefore check the entitlement of everyone you plan to employ to work in the UK. Failure to do so may result in a civil penalty or criminal conviction.

    British citizens can currently work in the UK without restrictions. Since 1 July 2021, Irish citizens can continue to use their passport or passport card to prove their right to work in the UK.

    All other EU, EEA, and Swiss citizens will no longer be able to use their passport or national identity card to prove their right to work. You'll need to check their right to work online using:

    • a share code
    • their date of birth

    You can also check someone's original documents instead if they do not have a UK immigration status that can be shared with your digitally. Check which types of documents give someone the right to work in the UK.

    You could face a civil penalty if you employ a worker and have not carried out a correct right-to-work check.

    Even if you think that a potential employee has the right to work in the UK, you should still make the necessary checks. You should ask candidates to provide evidence of their right to work in the UK by producing original copies of documents specified by the UK Visas and Immigration (UKVI).

    For more information on checking an employee's eligibility, see ensuring your workers are eligible to work in the UK.

    In addition, check if someone can work in the UK on the GOV.UK website.

    Employing someone who needs permission to work in the UK

    You may need a sponsor licence to employ someone from outside the UK.

    You do not need to sponsor an EEA or Swiss national, or their eligible family members, if they arrived in the UK before 11pm on 31 December 2020, provided they applied for status on the EU Settlement Scheme by 30 June 2021 and that application was granted. With limited exceptions, you do not need to sponsor Irish citizens.

    Read GOV.UK guidance on sponsorship.

    For more information on checking an employee's eligibility, see ensuring your workers are eligible to work in the UK.

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  • Withdrawing job offers where checks are not satisfactory

    Conditional job offers can be withdrawn if checks prove unsatisfactory.

    No contract of employment exists until a candidate has accepted an offer and all conditions under which the offer was made have been satisfied.

    You can withdraw conditional job offers made subject to suitable references and criminal records checks, where the results are not as you expected.

    If a candidate starts work before the results of checks have been received, you should make it clear that the offer may be withdrawn if the checks prove unsatisfactory - see pre-employment checks: checking references.

    You may also wish to offer employment subject to a trial or probationary period. The length of the period may depend on the type of job and how much time is needed to demonstrate the necessary skills.

    If you decide to withdraw the offer at the end of the period, you need to give the employee the notice period specified in their written statement and follow the statutory dismissal procedure in terminating their employment. It's also highly advisable to explain clearly why the offer is being withdrawn to avoid potential legal claims, eg for discrimination.

    If no notice period has been agreed, they are entitled to the statutory minimum notice period, or to any longer period which is the established custom or practice within the industry.

    For more guidance, see the employment contract and issue the correct periods of notice.

    An alternative to withdrawing an offer is to extend the probationary period - if the contract allows - and to provide appropriate training.

    Employees cannot claim unfair dismissal before completing one year's service unless it is for a number of automatically unfair reasons. Read more on dismissing employees.

    However, an employee dismissed during - or at - the completion of their probationary period may be able to claim breach of contract if - for example - you have not provided training that you promised would be given.

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  • Pre-employment checks: data protection issues

    Data protection considerations when making pre-employment checks.

    The Data Protection Act 2018 applies to personal information - data about living, identified, or identifiable individuals, including information such as names and addresses, bank details, and opinions expressed about an individual.

    Six data protection principles

    There are six data protection principles. Information should be:

    • lawfulness, fairness and transparency - you must process personal data that you collect on individuals in a lawful, fair and transparent manner
    • purpose limitation - you must only collect personal data for a specific, explicit and legitimate purpose and you must clearly state what this purpose is and only hold the data for as long as necessary to complete that purpose
    • data minimisation - you must ensure that personal data you process is adequate, relevant, and limited to what is necessary in relation to your processing purpose
    • accuracy - you must take every reasonable step to update or remove data that is inaccurate or incomplete and individuals have the right to request that you erase or rectify erroneous data that relates to them
    • storage limitation - you must delete personal data when you no longer need it and timescales are dependent on your business' circumstances and the reasons why you collect this data
    • integrity and confidentiality - you must keep personal data safe and protected against unauthorised or unlawful processing and against accidental loss, destruction or damage

    Read Information Commissioner's Office (ICO) guidance on data protection.

    The use of sensitive information - including information that might be disclosed during a criminal records check - is more tightly controlled. For further information, see ICO guidance on criminal offence data.

    Guidelines to follow

    There are some guidelines you should keep in mind in relation to pre-employment checks.

    You should:

    • only carry out checks which are necessary
    • think carefully about the best point in the process to carry out the different checks
    • where possible, only check the successful applicant
    • let applicants know what checks will be made and how they will be carried out
    • make sure that checks are carried out for a specific purpose
    • only use sources which will reveal relevant information
    • only rely on information that comes from sources you trust
    • give the candidate the chance to explain if a check reveals adverse information about them
    • if a third party is to be involved in the process - eg a previous employer not listed as a referee - let the applicant know

    Any information you gather in the process of making your pre-employment checks must be kept securely and confidentially. Any information gathered must not be kept for longer than is needed for its legitimate purpose.

    The candidate has the right to ask to see any information you hold on them which you must supply within one month of receiving the request. This information will be provided free of charge, however, where requests are manifestly unfounded or excessive you can charge a reasonable fee for the administrative costs of providing the information.

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Pre-employment checks: identity checks

In this guide:

  • Advantages of pre-employment checks

    Making pre-employment checks to comply with the law.

    Pre-employment checks are an important part of the recruitment process.

    They help you to:

    • comply with the law by ensuring the employee has permission to work - and remain - in the UK and has not been barred from carrying out the job - eg for roles working with vulnerable groups or holding the position of director
    • check that the potential employee is suitably qualified or skilled for the job
    • assess whether the potential employee is suitable for the job - eg for roles working with vulnerable groups or security roles
    • check that the employee is able to carry out the job - though you must ensure you do not discriminate in breach of the Disability Discrimination Act 1995

    Types of checks

    There are a range of checks you can carry out, some of which are compulsory and others which may be desirable. These include:

    You must ensure your checks are not discriminatory (for example, a health check that discriminates against disabled people and is not necessary for the job) and do not discourage people from applying for the job. For more guidance, see how to prevent discrimination and value diversity.

    You can make any job offer conditional on the outcome of pre-employment checks.

    A conditional job offer does not become a binding employment contract until both parties have agreed to it and can be withdrawn if the conditions are not met. See withdrawing job offers where checks are not satisfactory.

    You should carry out your checks as quickly as possible once a conditional offer has been made.

    Protective security guidance

    The National Protective Security Authority (NPSA) provides protective security advice. This is for companies and organisations that deliver the UK's essential services.

    Read NPSA advice on employment screening job applicants.

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  • Pre-employment checks: identity checks

    Why you should check a candidate's identity and how you can go about it.

    The first check you should carry out is to confirm the identity of the candidate and establish that their identity is genuine.

    You should not undertake any other checks until you are satisfied that the candidate is who they claim to be.

    How to check a person's identity

    You can check a person's identity by:

    • requesting original copies of documents - such as passports, birth certificates, and driving licences
    • asking for copies of documents that confirm the person lives where they claim they do - eg provide a recent bank statement or utility bill with their name and address on it
    • requesting a Certificate of Registration, or a Biometric Residence Permit, and/or immigration documents where relevant
    • using a commercial online database checking service

    Whilst these checks can prove that an identity exists, they cannot prove that the identity rightfully belongs to the person using it. You should back up any electronic check by obtaining original documents to support the claim.

    Job offer templates from Acas including a pre-employment checklist template.

    The HM Passport Office has introduced a number of measures to help employers check for identity fraud.

    Read more on the HM Passport Office's responsibilities and priorities.

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  • Pre-employment checks: checking references

    How and when you should check references.

    Although not compulsory, it is advisable to check a potential employee's references.

    You can do this in writing or by telephone at any point during the recruitment process. Some candidates will prefer you not to check their references until they have been offered the job, and you should seek their consent before any referees are contacted.

    There is no automatic right to receive a reference from a previous or current employer, except for roles in organisations covered by the Financial Conduct Authority and the Prudential Regulation Authority. The easiest way to obtain references is in writing.

    References should give facts such as start and end dates, job title, salary, and sickness absences (excluding any absence related to a disability or parental leave).

    You may wish to follow up on the information disclosed by having an informal conversation with the author of the reference, or the previous employer. Asking specific questions can disclose additional information, for example, details on the employee's performance, integrity, relevant personal information, and reasons for leaving. However, caution should be taken as to how any additional information is interpreted. After an informal conversation, good practice suggests:

    • Any information provided should not be used as a substitute for you making your own judgement about employment.
    • The information should be weighed against all evidence received during the recruitment process, making a balanced decision that takes into account all available information.
    • Consideration as to the context and circumstances of the information provided, should be carried out as circumstances can change. It may be appropriate to involve the potential employee in this consideration.

    Are references confidential?

    Generally, employees do not have the right to ask their employer to see a job reference that the employer has written about them which has been given in confidence. However, they may be able to gain access to it from the person the reference is sent to, so you should not assume a reference will stay confidential.

    Individuals may also be able to access notes made about them during a telephone reference as well as any notes you make during and after their interview.

    Read Information Commissioner's Office (ICO) guidance on your right of access to your personal information.

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  • Pre-employment checks: checking qualifications

    How and when you should check qualifications as part of your pre-employment checks.

    As well as looking at references, you should also check the candidate's qualifications, especially when the qualification is essential to the position you want to fill. In some professions, candidates must be in possession of specific qualifications before they can practice.

    You can check qualifications by asking to see the candidate's certificates. Alternatively, you can check with the awarding bodies or use one of the checking services.

    The Council for Curriculum Examinations & Assessment (CCEA) has details of the qualifications it accredits. Information is also available about the competence and performance levels they are based on. Read CCEA guidance on post-16 qualifications.

    UK ENIC is the UK national agency for international qualifications and skills and can help you compare overseas qualifications with UK equivalents. Compare overseas academic qualifications (registration required).

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  • Pre-employment checks: health checks

    Anti-discrimination and data protection considerations when asking candidates to complete a health check.

    You may wish to include health checks as part of your recruitment process. A health questionnaire may ask about individual and family history and lifestyle. They can highlight potential problems requiring a follow up - eg by a medical examination.

    Questions about disability and health during the recruitment process

    You should take great care when asking about a job candidate's disability or health concerns. You should ensure that you seek this information for the right reasons and not in order to discriminate against disabled people.

    The Equality Commission suggests giving job candidates the opportunity on an application form, or on a monitoring form, to indicate any relevant effects of a disability and to suggest any reasonable adjustments which may help them overcome any disadvantage in their potential workplace.

    You have an obligation, under the Disability Discrimination Act, to make reasonable adjustments for disabled employees or applicants at all stages of the recruitment, selection and employment process.

    Read Equality Commission guidance on hiring new staff.

    Asking a question about disability is not in itself discriminatory. However, your conduct following the candidate's response could lead an industrial tribunal to conclude that you have carried out a discriminatory act.

    When to carry out pre-employment health checks

    You should only complete pre-employment health checks:

    • once you have offered the job to a particular person
    • where any candidate - disabled or not - would be required to undergo testing to decide if they are fit to carry out the job
    • where testing is needed to meet any legal requirement - eg eye tests for commercial vehicle drivers
    • when you are sure you need this information and have policies in place to securely hold the information as required by the Data Protection Act, regardless of whether it is in paper or electronic form

    The level of assessment will depend on the nature of the job and can range from simply checking the levels of absence in a previous job to a full health assessment.

    If you are making a job offer conditional upon the candidate's fitness for the work, this should be stated clearly in the offer letter.

    You must ensure you are not carrying out discriminatory practices in asking potential employees to pass a health check. Health checks - if required - should be carried out on all candidates to avoid unfairly discriminating against disabled candidates. For further guidance, see how to prevent discrimination and value diversity.

    You may be required to pay a fee for a medical report from a candidate's GP. The candidate must give you their written consent before you request a medical report.

    Candidates have the right to see the report and can request that it is amended or withheld from you. Even without the candidate seeing the report, the doctor must keep it for 21 days before sending it to the employer.

    Alternatively, an employer may refer a prospective employee to occupational health. The employer must seek the candidate's consent before referral and the employer should pay for the referral.

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  • Pre-employment checks: applying for a criminal records check

    How and when to request an AccessNI check, the application process, and how to use the information provided.

    You can apply for a criminal records check for the potential applicant from AccessNI. This is usually required when people are working regularly with children or vulnerable adults or, for example, as part of the taxi driver licensing regime in Northern Ireland. The Security Industry Authority also carries out a criminal record check on anyone who applies for a security licence.

    It is important to ensure that a position is eligible for an AccessNI check before starting the process. Eligibility is governed by the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 (as amended). You should contact AccessNI if you are unsure whether a position is eligible for a check.

    Criminal records checks should not be requested until a job offer is made, but you should make it clear, in writing, that the job offer is conditional upon a criminal records check.

    There are three types of criminal records check - basic, standard and enhanced. Legislative provisions may require that either a Standard or Enhanced Disclosure is requested for someone commencing employment in certain sectors. The type of check you will need to make will depend on the work that is to be undertaken.

    The Disclosure and Barring Service (DBS) helps employers in Northern Ireland make safer recruitment decisions. The main criminal record checks are now called a DBS check. A DBS check is only necessary for certain types of jobs involving vulnerable groups eg working with children, in healthcare, prisons and courts. The DBS was established in 2012 and carries out the functions previously undertaken by the Criminal Records Bureau and the Independent Safeguarding Authority. It is accessible through AccessNI.

    For more information on each type of check, see AccessNI criminal records checks.

    Avoiding discrimination

    Once you have received your copy of the AccessNI disclosure certificate, you can assess whether the candidate is suitable for the job. An AccessNI disclosure will reveal previous convictions. Generally, under the terms of the Rehabilitation of Offenders (Northern Ireland) Order 1978, someone convicted of a criminal offence who does not receive any further convictions during 'the rehabilitation period' becomes a rehabilitated person. Their conviction is regarded as spent - therefore after a certain period of time, you should treat the person as if the conviction had not happened.

    However, a conviction resulting in a prison sentence of more than two and a half years can never be spent.

    A person must disclose all convictions - including spent ones - if the job offered falls into an exempted category according to the Rehabilitation of Offenders (Northern Ireland) 1978, including:

    • regular contact with children and vulnerable adults
    • accountancy
    • work as a barrister
    • police work
    • posts relating to the administration of justice or financial regulation
    • posts involving national security

    Whether the conviction is spent or unspent, you should carefully weigh a number of factors, including:

    • how long ago the offence was committed
    • the candidate's age at the time
    • the relevance of the offence to the job offered
    • the penalty awarded
    • whether the offence was isolated or part of a pattern of offending
    • what is known about the person's behaviour before and since

    People should not be unfairly discriminated against due to past convictions. You should also give the candidate a chance to explain if a check reveals adverse information about them.

    For details of your legal obligations when applying for AccessNI checks and using the sensitive personal information on a certificate see employing someone with a criminal record.

    Read employers' guidance on recruiting people with Northern Ireland conflict-related convictions.

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  • Pre-employment checks: ensuring candidates are eligible to work in the UK

    Preventing illegal working - the checks you must make, who is eligible for work and who needs permission.

    A new immigration system applies to people arriving in the UK from 1 January 2021. EU citizens moving to the UK to work will need to get a visa in advance. Employers need a sponsor licence to hire most workers from outside the UK. See right to work checks: employing EU, EEA and Swiss citizens.

    All employers in the UK have a responsibility to stop illegal workers. You must therefore check the entitlement of everyone you plan to employ to work in the UK. Failure to do so may result in a civil penalty or criminal conviction.

    British citizens can currently work in the UK without restrictions. Since 1 July 2021, Irish citizens can continue to use their passport or passport card to prove their right to work in the UK.

    All other EU, EEA, and Swiss citizens will no longer be able to use their passport or national identity card to prove their right to work. You'll need to check their right to work online using:

    • a share code
    • their date of birth

    You can also check someone's original documents instead if they do not have a UK immigration status that can be shared with your digitally. Check which types of documents give someone the right to work in the UK.

    You could face a civil penalty if you employ a worker and have not carried out a correct right-to-work check.

    Even if you think that a potential employee has the right to work in the UK, you should still make the necessary checks. You should ask candidates to provide evidence of their right to work in the UK by producing original copies of documents specified by the UK Visas and Immigration (UKVI).

    For more information on checking an employee's eligibility, see ensuring your workers are eligible to work in the UK.

    In addition, check if someone can work in the UK on the GOV.UK website.

    Employing someone who needs permission to work in the UK

    You may need a sponsor licence to employ someone from outside the UK.

    You do not need to sponsor an EEA or Swiss national, or their eligible family members, if they arrived in the UK before 11pm on 31 December 2020, provided they applied for status on the EU Settlement Scheme by 30 June 2021 and that application was granted. With limited exceptions, you do not need to sponsor Irish citizens.

    Read GOV.UK guidance on sponsorship.

    For more information on checking an employee's eligibility, see ensuring your workers are eligible to work in the UK.

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  • Withdrawing job offers where checks are not satisfactory

    Conditional job offers can be withdrawn if checks prove unsatisfactory.

    No contract of employment exists until a candidate has accepted an offer and all conditions under which the offer was made have been satisfied.

    You can withdraw conditional job offers made subject to suitable references and criminal records checks, where the results are not as you expected.

    If a candidate starts work before the results of checks have been received, you should make it clear that the offer may be withdrawn if the checks prove unsatisfactory - see pre-employment checks: checking references.

    You may also wish to offer employment subject to a trial or probationary period. The length of the period may depend on the type of job and how much time is needed to demonstrate the necessary skills.

    If you decide to withdraw the offer at the end of the period, you need to give the employee the notice period specified in their written statement and follow the statutory dismissal procedure in terminating their employment. It's also highly advisable to explain clearly why the offer is being withdrawn to avoid potential legal claims, eg for discrimination.

    If no notice period has been agreed, they are entitled to the statutory minimum notice period, or to any longer period which is the established custom or practice within the industry.

    For more guidance, see the employment contract and issue the correct periods of notice.

    An alternative to withdrawing an offer is to extend the probationary period - if the contract allows - and to provide appropriate training.

    Employees cannot claim unfair dismissal before completing one year's service unless it is for a number of automatically unfair reasons. Read more on dismissing employees.

    However, an employee dismissed during - or at - the completion of their probationary period may be able to claim breach of contract if - for example - you have not provided training that you promised would be given.

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  • Pre-employment checks: data protection issues

    Data protection considerations when making pre-employment checks.

    The Data Protection Act 2018 applies to personal information - data about living, identified, or identifiable individuals, including information such as names and addresses, bank details, and opinions expressed about an individual.

    Six data protection principles

    There are six data protection principles. Information should be:

    • lawfulness, fairness and transparency - you must process personal data that you collect on individuals in a lawful, fair and transparent manner
    • purpose limitation - you must only collect personal data for a specific, explicit and legitimate purpose and you must clearly state what this purpose is and only hold the data for as long as necessary to complete that purpose
    • data minimisation - you must ensure that personal data you process is adequate, relevant, and limited to what is necessary in relation to your processing purpose
    • accuracy - you must take every reasonable step to update or remove data that is inaccurate or incomplete and individuals have the right to request that you erase or rectify erroneous data that relates to them
    • storage limitation - you must delete personal data when you no longer need it and timescales are dependent on your business' circumstances and the reasons why you collect this data
    • integrity and confidentiality - you must keep personal data safe and protected against unauthorised or unlawful processing and against accidental loss, destruction or damage

    Read Information Commissioner's Office (ICO) guidance on data protection.

    The use of sensitive information - including information that might be disclosed during a criminal records check - is more tightly controlled. For further information, see ICO guidance on criminal offence data.

    Guidelines to follow

    There are some guidelines you should keep in mind in relation to pre-employment checks.

    You should:

    • only carry out checks which are necessary
    • think carefully about the best point in the process to carry out the different checks
    • where possible, only check the successful applicant
    • let applicants know what checks will be made and how they will be carried out
    • make sure that checks are carried out for a specific purpose
    • only use sources which will reveal relevant information
    • only rely on information that comes from sources you trust
    • give the candidate the chance to explain if a check reveals adverse information about them
    • if a third party is to be involved in the process - eg a previous employer not listed as a referee - let the applicant know

    Any information you gather in the process of making your pre-employment checks must be kept securely and confidentially. Any information gathered must not be kept for longer than is needed for its legitimate purpose.

    The candidate has the right to ask to see any information you hold on them which you must supply within one month of receiving the request. This information will be provided free of charge, however, where requests are manifestly unfounded or excessive you can charge a reasonable fee for the administrative costs of providing the information.

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Pre-employment checks: checking qualifications

In this guide:

  • Advantages of pre-employment checks

    Making pre-employment checks to comply with the law.

    Pre-employment checks are an important part of the recruitment process.

    They help you to:

    • comply with the law by ensuring the employee has permission to work - and remain - in the UK and has not been barred from carrying out the job - eg for roles working with vulnerable groups or holding the position of director
    • check that the potential employee is suitably qualified or skilled for the job
    • assess whether the potential employee is suitable for the job - eg for roles working with vulnerable groups or security roles
    • check that the employee is able to carry out the job - though you must ensure you do not discriminate in breach of the Disability Discrimination Act 1995

    Types of checks

    There are a range of checks you can carry out, some of which are compulsory and others which may be desirable. These include:

    You must ensure your checks are not discriminatory (for example, a health check that discriminates against disabled people and is not necessary for the job) and do not discourage people from applying for the job. For more guidance, see how to prevent discrimination and value diversity.

    You can make any job offer conditional on the outcome of pre-employment checks.

    A conditional job offer does not become a binding employment contract until both parties have agreed to it and can be withdrawn if the conditions are not met. See withdrawing job offers where checks are not satisfactory.

    You should carry out your checks as quickly as possible once a conditional offer has been made.

    Protective security guidance

    The National Protective Security Authority (NPSA) provides protective security advice. This is for companies and organisations that deliver the UK's essential services.

    Read NPSA advice on employment screening job applicants.

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  • Pre-employment checks: identity checks

    Why you should check a candidate's identity and how you can go about it.

    The first check you should carry out is to confirm the identity of the candidate and establish that their identity is genuine.

    You should not undertake any other checks until you are satisfied that the candidate is who they claim to be.

    How to check a person's identity

    You can check a person's identity by:

    • requesting original copies of documents - such as passports, birth certificates, and driving licences
    • asking for copies of documents that confirm the person lives where they claim they do - eg provide a recent bank statement or utility bill with their name and address on it
    • requesting a Certificate of Registration, or a Biometric Residence Permit, and/or immigration documents where relevant
    • using a commercial online database checking service

    Whilst these checks can prove that an identity exists, they cannot prove that the identity rightfully belongs to the person using it. You should back up any electronic check by obtaining original documents to support the claim.

    Job offer templates from Acas including a pre-employment checklist template.

    The HM Passport Office has introduced a number of measures to help employers check for identity fraud.

    Read more on the HM Passport Office's responsibilities and priorities.

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  • Pre-employment checks: checking references

    How and when you should check references.

    Although not compulsory, it is advisable to check a potential employee's references.

    You can do this in writing or by telephone at any point during the recruitment process. Some candidates will prefer you not to check their references until they have been offered the job, and you should seek their consent before any referees are contacted.

    There is no automatic right to receive a reference from a previous or current employer, except for roles in organisations covered by the Financial Conduct Authority and the Prudential Regulation Authority. The easiest way to obtain references is in writing.

    References should give facts such as start and end dates, job title, salary, and sickness absences (excluding any absence related to a disability or parental leave).

    You may wish to follow up on the information disclosed by having an informal conversation with the author of the reference, or the previous employer. Asking specific questions can disclose additional information, for example, details on the employee's performance, integrity, relevant personal information, and reasons for leaving. However, caution should be taken as to how any additional information is interpreted. After an informal conversation, good practice suggests:

    • Any information provided should not be used as a substitute for you making your own judgement about employment.
    • The information should be weighed against all evidence received during the recruitment process, making a balanced decision that takes into account all available information.
    • Consideration as to the context and circumstances of the information provided, should be carried out as circumstances can change. It may be appropriate to involve the potential employee in this consideration.

    Are references confidential?

    Generally, employees do not have the right to ask their employer to see a job reference that the employer has written about them which has been given in confidence. However, they may be able to gain access to it from the person the reference is sent to, so you should not assume a reference will stay confidential.

    Individuals may also be able to access notes made about them during a telephone reference as well as any notes you make during and after their interview.

    Read Information Commissioner's Office (ICO) guidance on your right of access to your personal information.

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  • Pre-employment checks: checking qualifications

    How and when you should check qualifications as part of your pre-employment checks.

    As well as looking at references, you should also check the candidate's qualifications, especially when the qualification is essential to the position you want to fill. In some professions, candidates must be in possession of specific qualifications before they can practice.

    You can check qualifications by asking to see the candidate's certificates. Alternatively, you can check with the awarding bodies or use one of the checking services.

    The Council for Curriculum Examinations & Assessment (CCEA) has details of the qualifications it accredits. Information is also available about the competence and performance levels they are based on. Read CCEA guidance on post-16 qualifications.

    UK ENIC is the UK national agency for international qualifications and skills and can help you compare overseas qualifications with UK equivalents. Compare overseas academic qualifications (registration required).

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  • Pre-employment checks: health checks

    Anti-discrimination and data protection considerations when asking candidates to complete a health check.

    You may wish to include health checks as part of your recruitment process. A health questionnaire may ask about individual and family history and lifestyle. They can highlight potential problems requiring a follow up - eg by a medical examination.

    Questions about disability and health during the recruitment process

    You should take great care when asking about a job candidate's disability or health concerns. You should ensure that you seek this information for the right reasons and not in order to discriminate against disabled people.

    The Equality Commission suggests giving job candidates the opportunity on an application form, or on a monitoring form, to indicate any relevant effects of a disability and to suggest any reasonable adjustments which may help them overcome any disadvantage in their potential workplace.

    You have an obligation, under the Disability Discrimination Act, to make reasonable adjustments for disabled employees or applicants at all stages of the recruitment, selection and employment process.

    Read Equality Commission guidance on hiring new staff.

    Asking a question about disability is not in itself discriminatory. However, your conduct following the candidate's response could lead an industrial tribunal to conclude that you have carried out a discriminatory act.

    When to carry out pre-employment health checks

    You should only complete pre-employment health checks:

    • once you have offered the job to a particular person
    • where any candidate - disabled or not - would be required to undergo testing to decide if they are fit to carry out the job
    • where testing is needed to meet any legal requirement - eg eye tests for commercial vehicle drivers
    • when you are sure you need this information and have policies in place to securely hold the information as required by the Data Protection Act, regardless of whether it is in paper or electronic form

    The level of assessment will depend on the nature of the job and can range from simply checking the levels of absence in a previous job to a full health assessment.

    If you are making a job offer conditional upon the candidate's fitness for the work, this should be stated clearly in the offer letter.

    You must ensure you are not carrying out discriminatory practices in asking potential employees to pass a health check. Health checks - if required - should be carried out on all candidates to avoid unfairly discriminating against disabled candidates. For further guidance, see how to prevent discrimination and value diversity.

    You may be required to pay a fee for a medical report from a candidate's GP. The candidate must give you their written consent before you request a medical report.

    Candidates have the right to see the report and can request that it is amended or withheld from you. Even without the candidate seeing the report, the doctor must keep it for 21 days before sending it to the employer.

    Alternatively, an employer may refer a prospective employee to occupational health. The employer must seek the candidate's consent before referral and the employer should pay for the referral.

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  • Pre-employment checks: applying for a criminal records check

    How and when to request an AccessNI check, the application process, and how to use the information provided.

    You can apply for a criminal records check for the potential applicant from AccessNI. This is usually required when people are working regularly with children or vulnerable adults or, for example, as part of the taxi driver licensing regime in Northern Ireland. The Security Industry Authority also carries out a criminal record check on anyone who applies for a security licence.

    It is important to ensure that a position is eligible for an AccessNI check before starting the process. Eligibility is governed by the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 (as amended). You should contact AccessNI if you are unsure whether a position is eligible for a check.

    Criminal records checks should not be requested until a job offer is made, but you should make it clear, in writing, that the job offer is conditional upon a criminal records check.

    There are three types of criminal records check - basic, standard and enhanced. Legislative provisions may require that either a Standard or Enhanced Disclosure is requested for someone commencing employment in certain sectors. The type of check you will need to make will depend on the work that is to be undertaken.

    The Disclosure and Barring Service (DBS) helps employers in Northern Ireland make safer recruitment decisions. The main criminal record checks are now called a DBS check. A DBS check is only necessary for certain types of jobs involving vulnerable groups eg working with children, in healthcare, prisons and courts. The DBS was established in 2012 and carries out the functions previously undertaken by the Criminal Records Bureau and the Independent Safeguarding Authority. It is accessible through AccessNI.

    For more information on each type of check, see AccessNI criminal records checks.

    Avoiding discrimination

    Once you have received your copy of the AccessNI disclosure certificate, you can assess whether the candidate is suitable for the job. An AccessNI disclosure will reveal previous convictions. Generally, under the terms of the Rehabilitation of Offenders (Northern Ireland) Order 1978, someone convicted of a criminal offence who does not receive any further convictions during 'the rehabilitation period' becomes a rehabilitated person. Their conviction is regarded as spent - therefore after a certain period of time, you should treat the person as if the conviction had not happened.

    However, a conviction resulting in a prison sentence of more than two and a half years can never be spent.

    A person must disclose all convictions - including spent ones - if the job offered falls into an exempted category according to the Rehabilitation of Offenders (Northern Ireland) 1978, including:

    • regular contact with children and vulnerable adults
    • accountancy
    • work as a barrister
    • police work
    • posts relating to the administration of justice or financial regulation
    • posts involving national security

    Whether the conviction is spent or unspent, you should carefully weigh a number of factors, including:

    • how long ago the offence was committed
    • the candidate's age at the time
    • the relevance of the offence to the job offered
    • the penalty awarded
    • whether the offence was isolated or part of a pattern of offending
    • what is known about the person's behaviour before and since

    People should not be unfairly discriminated against due to past convictions. You should also give the candidate a chance to explain if a check reveals adverse information about them.

    For details of your legal obligations when applying for AccessNI checks and using the sensitive personal information on a certificate see employing someone with a criminal record.

    Read employers' guidance on recruiting people with Northern Ireland conflict-related convictions.

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  • Pre-employment checks: ensuring candidates are eligible to work in the UK

    Preventing illegal working - the checks you must make, who is eligible for work and who needs permission.

    A new immigration system applies to people arriving in the UK from 1 January 2021. EU citizens moving to the UK to work will need to get a visa in advance. Employers need a sponsor licence to hire most workers from outside the UK. See right to work checks: employing EU, EEA and Swiss citizens.

    All employers in the UK have a responsibility to stop illegal workers. You must therefore check the entitlement of everyone you plan to employ to work in the UK. Failure to do so may result in a civil penalty or criminal conviction.

    British citizens can currently work in the UK without restrictions. Since 1 July 2021, Irish citizens can continue to use their passport or passport card to prove their right to work in the UK.

    All other EU, EEA, and Swiss citizens will no longer be able to use their passport or national identity card to prove their right to work. You'll need to check their right to work online using:

    • a share code
    • their date of birth

    You can also check someone's original documents instead if they do not have a UK immigration status that can be shared with your digitally. Check which types of documents give someone the right to work in the UK.

    You could face a civil penalty if you employ a worker and have not carried out a correct right-to-work check.

    Even if you think that a potential employee has the right to work in the UK, you should still make the necessary checks. You should ask candidates to provide evidence of their right to work in the UK by producing original copies of documents specified by the UK Visas and Immigration (UKVI).

    For more information on checking an employee's eligibility, see ensuring your workers are eligible to work in the UK.

    In addition, check if someone can work in the UK on the GOV.UK website.

    Employing someone who needs permission to work in the UK

    You may need a sponsor licence to employ someone from outside the UK.

    You do not need to sponsor an EEA or Swiss national, or their eligible family members, if they arrived in the UK before 11pm on 31 December 2020, provided they applied for status on the EU Settlement Scheme by 30 June 2021 and that application was granted. With limited exceptions, you do not need to sponsor Irish citizens.

    Read GOV.UK guidance on sponsorship.

    For more information on checking an employee's eligibility, see ensuring your workers are eligible to work in the UK.

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  • Withdrawing job offers where checks are not satisfactory

    Conditional job offers can be withdrawn if checks prove unsatisfactory.

    No contract of employment exists until a candidate has accepted an offer and all conditions under which the offer was made have been satisfied.

    You can withdraw conditional job offers made subject to suitable references and criminal records checks, where the results are not as you expected.

    If a candidate starts work before the results of checks have been received, you should make it clear that the offer may be withdrawn if the checks prove unsatisfactory - see pre-employment checks: checking references.

    You may also wish to offer employment subject to a trial or probationary period. The length of the period may depend on the type of job and how much time is needed to demonstrate the necessary skills.

    If you decide to withdraw the offer at the end of the period, you need to give the employee the notice period specified in their written statement and follow the statutory dismissal procedure in terminating their employment. It's also highly advisable to explain clearly why the offer is being withdrawn to avoid potential legal claims, eg for discrimination.

    If no notice period has been agreed, they are entitled to the statutory minimum notice period, or to any longer period which is the established custom or practice within the industry.

    For more guidance, see the employment contract and issue the correct periods of notice.

    An alternative to withdrawing an offer is to extend the probationary period - if the contract allows - and to provide appropriate training.

    Employees cannot claim unfair dismissal before completing one year's service unless it is for a number of automatically unfair reasons. Read more on dismissing employees.

    However, an employee dismissed during - or at - the completion of their probationary period may be able to claim breach of contract if - for example - you have not provided training that you promised would be given.

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  • Pre-employment checks: data protection issues

    Data protection considerations when making pre-employment checks.

    The Data Protection Act 2018 applies to personal information - data about living, identified, or identifiable individuals, including information such as names and addresses, bank details, and opinions expressed about an individual.

    Six data protection principles

    There are six data protection principles. Information should be:

    • lawfulness, fairness and transparency - you must process personal data that you collect on individuals in a lawful, fair and transparent manner
    • purpose limitation - you must only collect personal data for a specific, explicit and legitimate purpose and you must clearly state what this purpose is and only hold the data for as long as necessary to complete that purpose
    • data minimisation - you must ensure that personal data you process is adequate, relevant, and limited to what is necessary in relation to your processing purpose
    • accuracy - you must take every reasonable step to update or remove data that is inaccurate or incomplete and individuals have the right to request that you erase or rectify erroneous data that relates to them
    • storage limitation - you must delete personal data when you no longer need it and timescales are dependent on your business' circumstances and the reasons why you collect this data
    • integrity and confidentiality - you must keep personal data safe and protected against unauthorised or unlawful processing and against accidental loss, destruction or damage

    Read Information Commissioner's Office (ICO) guidance on data protection.

    The use of sensitive information - including information that might be disclosed during a criminal records check - is more tightly controlled. For further information, see ICO guidance on criminal offence data.

    Guidelines to follow

    There are some guidelines you should keep in mind in relation to pre-employment checks.

    You should:

    • only carry out checks which are necessary
    • think carefully about the best point in the process to carry out the different checks
    • where possible, only check the successful applicant
    • let applicants know what checks will be made and how they will be carried out
    • make sure that checks are carried out for a specific purpose
    • only use sources which will reveal relevant information
    • only rely on information that comes from sources you trust
    • give the candidate the chance to explain if a check reveals adverse information about them
    • if a third party is to be involved in the process - eg a previous employer not listed as a referee - let the applicant know

    Any information you gather in the process of making your pre-employment checks must be kept securely and confidentially. Any information gathered must not be kept for longer than is needed for its legitimate purpose.

    The candidate has the right to ask to see any information you hold on them which you must supply within one month of receiving the request. This information will be provided free of charge, however, where requests are manifestly unfounded or excessive you can charge a reasonable fee for the administrative costs of providing the information.

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Rights of fixed-term employees

In this guide:

  • Rights of fixed-term employees

    How to fulfil your legal obligations by granting fixed-term employees the same rights as permanent staff.

    Fixed-term employees have the right not to be treated less favourably than comparable permanent employees because they are on a fixed-term contract.

    This means you must treat fixed-term employees the same as comparable permanent employees unless there are 'objectively justifiable' circumstances for not doing so (ie there is a genuine, necessary, and appropriate business reason).

    Therefore they must receive the same or equivalent (pro-rata) pay and conditions, benefits, pension rights, and opportunity to apply for permanent positions within the business.

    When fixed-term could become permanent contracts

    Under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland), which came into operation on 1 October 2002, employees who have been on a fixed-term contract for four years or longer will usually be legally classed as permanent if their contract is renewed or if they are re-engaged on a new fixed-term contract. The Fixed-term Employees Regulations apply only to 'employees', not to the wider category of 'workers'.

    Exemptions to the rule

    The only exemptions to the rule above are when employment on a further fixed-term contract is objectively justified to achieve a legitimate business aim or when the period of four years has been lengthened under a collective or workplace agreement.

    You also need to make the same tax arrangements for fixed-term employees as for permanent staff.

    Developed with
    The Department for the Economy
    Labour Relations Agency
    Help
    LRA Workplace Information Service
    Actions
    Agreeing and changing contracts of employment | Labour Relations Agency guidance
    Fixed-term workers | nidirect
    Sample contract of employment (DOC, 31K)
    Also on this site
    The employment contract
    HR documents and templates
    Invest Northern Ireland Employers' Handbook
    Content category
    Employment and skills

    Source URL

    /content/rights-fixed-term-employees

    Links

  • Fixed-term employment contracts and the 'equal treatment' principle

    Comparing the fixed-term employee with a comparable permanent employee.

    Fixed-term employees have the right not to be treated less favourably than comparable permanent employees because of their employment status unless the different treatment can be objectively justified.

    Comparing employment conditions

    To assess whether they are receiving equal treatment, a fixed-term employee can compare their employment conditions to that of a comparable permanent employee. This means someone working for you on an indefinite or an indeterminate employment contract and in the same place, doing the same or similar work. Skills and qualifications are taken into account where relevant to the job.

    Where a fixed-term employee does the same work as several permanent employees whose contractual terms are different, the fixed-term employee can select someone to compare themselves to.

    The chances of a claim for equal treatment being successful depend on the employee selecting a similar comparator and whether there are objectively justifiable reasons for their being treated differently.

    If no comparable permanent employee works in the same place, a fixed-term employee can choose someone working for you at another premises, but not someone working for a different employer.

    An employee will not be a comparable permanent employee if his/her employment has ceased.

    Developed with
    The Department for the Economy
    Labour Relations Agency
    Help
    LRA Workplace Information Service
    Actions
    Fixed-term contracts | LRA guidance
    Fixed-term workers | nidirect
    Sample contract of employment (DOC, 31K)
    Also on this site
    Contract types and employer responsibilities
    The employment contract
    Prevent discrimination and value diversity
    Content category
    Employment and skills

    Source URL

    /content/fixed-term-employment-contracts-and-equal-treatment-principle

    Links

  • Fixed-term employment contracts and 'less favourable treatment'

    How to avoid treating fixed-term employees less favourably than their permanent equivalents.

    A fixed-term employee has the right not to be treated less favourably as regards the terms of his or her contract. A term-by-term approach is required when considering less favourable treatment in this context.

    Less favourable treatment happens when a fixed-term employee does not receive conditions or benefits granted to a comparable permanent employee - or receives or is offered a benefit on less favourable terms.

    Examples of less favourable treatment would include not being given a bonus or receiving fewer paid holidays than comparable permanent employees.

    If you give training to permanent employees, you must not deny fixed-term employees access to it unless it can be objectively justified. In addition, permanent staff must not enjoy preferential treatment for promotion or redundancy, unless objectively justifiable.

    The period of service qualifications relating to particular conditions of employment must be the same for fixed-term employees as for permanent employees except where different length of service qualifications is justified on objective grounds.

    Written statement of employment

    If a fixed-term employee feels less favourably treated because of their employment status or believes their rights have been infringed, they can request a written statement of employment from you detailing the reasons. You must produce this within 21 days of the request. This is your opportunity to clarify why a fixed-term employee receives particular treatment. The intention is not to allow fixed-term employees to find out what their colleagues are receiving.

    If you do not believe less favourable treatment has been given, or you have objective justification for it, the statement should say so. If a package approach is being used, the statement should say that this is why different treatment is occurring with respect to one or more benefits. The statement might be used at an industrial tribunal hearing concerning a complaint under the regulations.

    Although a failure to give a written statement of employment has no direct legal effect in itself, the statement is admissible in any proceedings under the regulations. A failure to provide one allows a tribunal to draw any inference it considers just and equitable (including an inference that you are in breach of the regulations) if it appears that the employer deliberately and without reasonable excuse omitted to provide a statement, or that the written statement is evasive or equivocal. A carefully drafted written statement of employment can avoid such a possibility and should be provided.

    What is objective justification?

    Less favourable treatment will be justified on objective grounds if you can show that it is necessary and appropriate to achieve a legitimate and genuine business objective.

    Objective justification may be a matter of degree. You should consider offering fixed-term employees certain benefits (eg loans, clothing allowances, etc) on a pro-rata basis. Sometimes, the cost to you of offering certain benefits to a fixed-term employee may be disproportionate to the benefit the employee would receive. This may objectively justify different treatment.

    An example of this may be where a fixed-term employee is on a contract of three months and a comparator has a company car. You may decide not to offer the car if the cost of doing so is high and the need of the business for your employee to travel can be met in some other way.

    Less favourable treatment in relation to particular contractual terms is justified where the fixed-term employee's overall package of terms and conditions is no less favourable than the comparable permanent employee's overall package.

    How do employers objectively justify different conditions?

    You can argue that there is objective justification for treating the fixed-term employee differently.

    Alternatively, you may prove that the value of the fixed-term employee's overall terms and conditions at least equal the value of those of the comparable permanent employee.

    You will need to consider whether less favourable treatment is objectively justified on a case-by-case basis, either comparing term-by-term or comparing a package of terms and conditions.

    Developed with
    The Department for the Economy
    Labour Relations Agency
    Help
    LRA Workplace Information Service
    Actions
    Fixed-term contracts | LRA guidance
    Fixed-term workers | nidirect
    Sample contract of employment (DOC, 31K)
    Also on this site
    The written statement of employment
    Contract types and employer responsibilities
    The employment contract
    Prevent discrimination and value diversity
    Content category
    Employment and skills

    Source URL

    /content/fixed-term-employment-contracts-and-less-favourable-treatment

    Links

  • Fixed-term employment benefits

    Employment benefits that can be offered to fixed-term employees.

    Some employment benefits such as season ticket loans, health insurance or staff discounts can be offered on an annual basis or over a specified period. Where a fixed-term employee is not expected to work for this period, you might offer it in proportion to the contract duration ('pro-rata').

    For example, if the contract is for six months, the employee should receive half of an annual benefit. If the contract is for four months, they should receive one-third.

    If this is not possible because the cost to you would outweigh the benefit to the employee, you can claim objective justification for not offering the benefit.

    You need to consider whether less favourable treatment is objectively justified on a case-by-case basis. See fixed-term contracts and 'less favourable treatment'.

    Access to occupational pension schemes

    You must offer fixed-term employees access to occupational pension schemes on the same basis as permanent staff unless different treatment is objectively justified.

    For example, if a pension scheme has been closed to new permanent employees, new fixed-term employees need not be offered access, even if their permanent comparator has access. It is important that the point at which employees have joined a company in order to have been offered access to the scheme is the same for fixed-term as for permanent employees unless a difference is objectively justified.

    You do not need to offer special alternative benefits (eg contributions to a private pension scheme) to fixed-term employees who decide not to join a pension scheme unless this option is offered to comparable permanent employees.

    In certain situations, it may not be necessary to offer all fixed-term employees access to occupational pension schemes. For example, where an employee is on a fixed-term contract that is shorter than the vesting period for a pension scheme, or you offer the employee a salary increase equivalent to employer pension contributions paid to permanent staff, you may be able to justify excluding them from the scheme. See know your legal obligations on pensions.

    In addition, the Pensions (No.2) Act (Northern Ireland) 2008 introduced obligations on employers to provide access to and contribute towards, a workplace pension scheme for eligible employees.

    Every employer must enrol workers into a workplace pension if they meet certain criteria. See automatic enrolment into a workplace pension.

    Developed with
    Department for the Economy
    Labour Relations Agency
    Help
    LRA Workplace Information Service
    Actions
    Fixed-term contracts | LRA guidance
    Fixed-term workers | nidirect
    Sample contract of employment (DOC, 31K)
    Also on this site
    Implement staff incentive schemes
    Know your legal obligations on pensions
    Choose the right pension scheme
    Running a pension scheme
    Content category
    Employment and skills

    Source URL

    /content/fixed-term-employment-benefits

    Links

  • Redundancy rights of fixed-term employees

    Employer obligations to grant fixed-term employees their legal redundancy rights.

    Fixed-term employees have a right to statutory redundancy pay if they have been continuously employed for two years or more. Redundancy is defined in statute and the Labour Relations Agency (LRA) can provide you with information and advice on redundancy.

    When a fixed-term contract terminates and is not renewed, the employee is dismissed. The reason for this dismissal will not always be redundancy - this will depend on whether you are laying off employees of the type that the fixed-term employee is, or whether there is some other reason for not renewing the contract (for example, the fixed-term employee was covering for an absent member of permanent staff).

    Fixed-term employees cannot be excluded from the statutory redundancy payments scheme. However, they can be excluded from contractual schemes if this is objectively justified.

    Fixed-term employees should receive the same level of redundancy payments as permanent employees unless different treatment is objectively justified.

    You also need to consider whether fixed-term employees are being treated fairly in relation to other elements of redundancy packages, eg have the same access to specialist job search services as comparable permanent employees. Different treatment may be objectively justified and it is more likely to be so if the fixed-term employee did not expect their employment to last longer than the term of their first contract.

    Selection for redundancy

    Fixed-term employees cannot be selected for redundancy simply because of their employment status. Where fixed-term employees have been brought in to complete a particular task or as cover over a peak period, you can objectively justify selecting them for redundancy at the end of their contracts.

    Length of service (Last In First Out) should never be used as sole/main criteria in a redundancy situation as it may indirectly discriminate on the grounds of age (and potentially religion, where an employer has been taking positive action to address an underrepresentation from one community in their workforce). It can be used in conjunction with other criteria or perhaps applied in tie-break situations. See redundancy selection: non compulsory and redundancy selection: compulsory.

    Developed with
    The Department for the Economy
    Labour Relations Agency
    Help
    LRA Workplace Information Service
    Actions
    Handling redundancy | LRA guidance
    Fixed-term contracts | LRA guidance
    Fixed-term workers | nidirect
    Also on this site
    Redundancy: the options
    Redundancy letters, forms and templates
    The employment contract
    Continuous employment and employee rights
    Content category
    Employment and skills

    Source URL

    /content/redundancy-rights-fixed-term-employees

    Links

  • Fixed-term employment contracts and statutory employment rights

    Handle fixed-term redundancies legally when tasks or events are completed.

    If an employment contract terminates when a task is completed or an event occurs or does not occur, this is legally classified as dismissal.

    This gives fixed-term employees the same statutory rights as permanent employees or others on different fixed-term contracts, including the right:

    • not to be unfairly dismissed (after one year's continuous employment)
    • to a written statement of reasons for dismissal (after one year)
    • to statutory redundancy payments (after two years)
    Developed with
    The Department for the Economy
    Labour Relations Agency
    Help
    LRA Workplace Information Service
    Actions
    Dismissal | LRA guidance
    Fixed-term contracts | LRA guidance
    Fixed-term workers | nidirect
    Also on this site
    Continuous employment and employee rights
    The employment contract
    Dismissing employees
    When workers leave your employment
    Content category
    Employment and skills

    Source URL

    /content/fixed-term-employment-contracts-and-statutory-employment-rights

    Links

  • Limiting the use of successive fixed-term employment contracts

    When renewed fixed-term employment contracts become permanent.

    If a fixed-term employee has their employment contract renewed or if they are re-engaged on a new fixed-term employment contract when they already have a period of four or more years of continuous employment, the renewal or new contract takes effect as a permanent contract (unless employment on a fixed-term contract was objectively justified or the period of four years has been lengthened under a collective or workplace agreement).

    If however a fixed-term employee has had their contract renewed at least once before the four-year period has elapsed, the employee's contract will become permanent after they have completed a total of four years' service. The only exceptions are when employment on a fixed-term contract can be objectively justified, or if the period of four years has been lengthened under a collective or workplace agreement.

    Continuous employment usually means employment without a break, although breaks for strike action and time spent out of work appealing against unfair dismissal (if the employee is subsequently reinstated) will not break continuity. The interval between contracts that result in continuous service being broken is determined by case law and statute and varies according to the circumstances.

    Renewing or extending fixed-term employment contracts

    If an employee has a fixed-term contract renewed before or extended beyond the four-year statutory limit (or beyond the limit agreed in any applicable collective or workplace agreement), the contract will be regarded as one of indefinite duration.

    An employee whose employment contract is renewed as a fixed-term contract, or re-engaged under a fixed-term contract, after the four-year period has the right to ask you in writing for a written statement of employment to confirm that they are now a permanent employee. You must produce the written statement of employment within 21 days and if you maintain that the employee is still fixed-term, you must explain the reasons why. The statement may be used at an industrial tribunal hearing if your employee decides to make a claim. See the written statement.

    Once the employee's contract is regarded as permanent, statutory minimum notice periods apply unless longer periods are contractually agreed.

    The limitation on successive fixed-term employment contracts will apply only where the employee has been continuously employed for the whole period. An employee may be continuously employed even where there is a gap between successive contracts. See continuous employment and employee rights.

    Fixed-term contract renewal may be justified on objective grounds if it is necessary and appropriate to achieve a legitimate objective, for example, a genuine business objective.

    Collective and workplace agreements

    Such agreements provide an alternative scheme for preventing abuses of fixed-term employment contracts and can be made to vary the limit on the duration of successive fixed-term contracts upwards or downwards, or to limit the use of successive fixed-term contracts by applying one or more of the following:

    • a limit on the total duration of successive fixed-term employment contracts
    • a limit on the number of successive fixed-term employment contracts
    • a list of permissible objective reasons justifying renewals of fixed-term employment contracts

    You and your employees may agree on reasons for renewing fixed-term contracts, including the specific needs of particular professions, for example, professional sport and theatre. It is important that these reasons do not permit the abuse of successive fixed-term contracts.

    A collective agreement is made between an employer or association/group of employers and trade union representatives. A workforce agreement is made between representatives of a workforce and an employer.

    Workforce agreements can apply only to groups of employees whose terms and conditions of employment are not covered by a collective agreement. Where a union is recognised to negotiate terms and conditions of employment any variations must be made through a collective agreement.

    See work effectively with trade unions.

    Developed with
    The Department for the Economy
    Labour Relations Agency
    Help
    LRA Workplace Information Service
    Actions
    Fixed-term contracts | LRA guidance
    Fixed-term workers | nidirect
    Also on this site
    Continuous employment and employee rights
    The written statement of employment
    The employment contract
    Work effectively with trade unions
    Content category
    Employment and skills

    Source URL

    /content/limiting-use-successive-fixed-term-employment-contracts

    Links

  • Informing fixed-term employees about permanent vacancies

    Fulfil your legal obligations to fixed-term employees when permanent positions arise.

    You must inform fixed-term employees of permanent vacancies in your organisation, and give them the same opportunity as others to apply for such roles.

    You should inform fixed-term and permanent employees of such vacancies at the same time and in the same way. Displaying a vacancy notice where all employees can see it or emailing the vacancy to all staff members will usually enable you to do this effectively.

    Industrial Tribunals

    Finally, under the regulations, a fixed-term employee may present a claim to an Industrial Tribunal alleging that they have not been informed of available vacancies or that they have suffered a detriment, or less favourable treatment. If you receive such a complaint you can contact the Labour Relations Agency (LRA). Its conciliation service applies to such claims. See details of the LRA's dispute resolution services.

    Developed with
    The Department for the Economy
    Labour Relations Agency
    Help
    LRA Workplace Information Service
    Actions
    Recruitment, selection and induction | LRA guidance
    Fixed-term workers | nidirect
    Also on this site
    Advertise a job vacancy
    Recruiting staff
    Content category
    Employment and skills

    Source URL

    /content/informing-fixed-term-employees-about-permanent-vacancies

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Fixed-term employment contracts and the 'equal treatment' principle

In this guide:

  • Rights of fixed-term employees

    How to fulfil your legal obligations by granting fixed-term employees the same rights as permanent staff.

    Fixed-term employees have the right not to be treated less favourably than comparable permanent employees because they are on a fixed-term contract.

    This means you must treat fixed-term employees the same as comparable permanent employees unless there are 'objectively justifiable' circumstances for not doing so (ie there is a genuine, necessary, and appropriate business reason).

    Therefore they must receive the same or equivalent (pro-rata) pay and conditions, benefits, pension rights, and opportunity to apply for permanent positions within the business.

    When fixed-term could become permanent contracts

    Under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland), which came into operation on 1 October 2002, employees who have been on a fixed-term contract for four years or longer will usually be legally classed as permanent if their contract is renewed or if they are re-engaged on a new fixed-term contract. The Fixed-term Employees Regulations apply only to 'employees', not to the wider category of 'workers'.

    Exemptions to the rule

    The only exemptions to the rule above are when employment on a further fixed-term contract is objectively justified to achieve a legitimate business aim or when the period of four years has been lengthened under a collective or workplace agreement.

    You also need to make the same tax arrangements for fixed-term employees as for permanent staff.

    Developed with
    The Department for the Economy
    Labour Relations Agency
    Help
    LRA Workplace Information Service
    Actions
    Agreeing and changing contracts of employment | Labour Relations Agency guidance
    Fixed-term workers | nidirect
    Sample contract of employment (DOC, 31K)
    Also on this site
    The employment contract
    HR documents and templates
    Invest Northern Ireland Employers' Handbook
    Content category
    Employment and skills

    Source URL

    /content/rights-fixed-term-employees

    Links

  • Fixed-term employment contracts and the 'equal treatment' principle

    Comparing the fixed-term employee with a comparable permanent employee.

    Fixed-term employees have the right not to be treated less favourably than comparable permanent employees because of their employment status unless the different treatment can be objectively justified.

    Comparing employment conditions

    To assess whether they are receiving equal treatment, a fixed-term employee can compare their employment conditions to that of a comparable permanent employee. This means someone working for you on an indefinite or an indeterminate employment contract and in the same place, doing the same or similar work. Skills and qualifications are taken into account where relevant to the job.

    Where a fixed-term employee does the same work as several permanent employees whose contractual terms are different, the fixed-term employee can select someone to compare themselves to.

    The chances of a claim for equal treatment being successful depend on the employee selecting a similar comparator and whether there are objectively justifiable reasons for their being treated differently.

    If no comparable permanent employee works in the same place, a fixed-term employee can choose someone working for you at another premises, but not someone working for a different employer.

    An employee will not be a comparable permanent employee if his/her employment has ceased.

    Developed with
    The Department for the Economy
    Labour Relations Agency
    Help
    LRA Workplace Information Service
    Actions
    Fixed-term contracts | LRA guidance
    Fixed-term workers | nidirect
    Sample contract of employment (DOC, 31K)
    Also on this site
    Contract types and employer responsibilities
    The employment contract
    Prevent discrimination and value diversity
    Content category
    Employment and skills

    Source URL

    /content/fixed-term-employment-contracts-and-equal-treatment-principle

    Links

  • Fixed-term employment contracts and 'less favourable treatment'

    How to avoid treating fixed-term employees less favourably than their permanent equivalents.

    A fixed-term employee has the right not to be treated less favourably as regards the terms of his or her contract. A term-by-term approach is required when considering less favourable treatment in this context.

    Less favourable treatment happens when a fixed-term employee does not receive conditions or benefits granted to a comparable permanent employee - or receives or is offered a benefit on less favourable terms.

    Examples of less favourable treatment would include not being given a bonus or receiving fewer paid holidays than comparable permanent employees.

    If you give training to permanent employees, you must not deny fixed-term employees access to it unless it can be objectively justified. In addition, permanent staff must not enjoy preferential treatment for promotion or redundancy, unless objectively justifiable.

    The period of service qualifications relating to particular conditions of employment must be the same for fixed-term employees as for permanent employees except where different length of service qualifications is justified on objective grounds.

    Written statement of employment

    If a fixed-term employee feels less favourably treated because of their employment status or believes their rights have been infringed, they can request a written statement of employment from you detailing the reasons. You must produce this within 21 days of the request. This is your opportunity to clarify why a fixed-term employee receives particular treatment. The intention is not to allow fixed-term employees to find out what their colleagues are receiving.

    If you do not believe less favourable treatment has been given, or you have objective justification for it, the statement should say so. If a package approach is being used, the statement should say that this is why different treatment is occurring with respect to one or more benefits. The statement might be used at an industrial tribunal hearing concerning a complaint under the regulations.

    Although a failure to give a written statement of employment has no direct legal effect in itself, the statement is admissible in any proceedings under the regulations. A failure to provide one allows a tribunal to draw any inference it considers just and equitable (including an inference that you are in breach of the regulations) if it appears that the employer deliberately and without reasonable excuse omitted to provide a statement, or that the written statement is evasive or equivocal. A carefully drafted written statement of employment can avoid such a possibility and should be provided.

    What is objective justification?

    Less favourable treatment will be justified on objective grounds if you can show that it is necessary and appropriate to achieve a legitimate and genuine business objective.

    Objective justification may be a matter of degree. You should consider offering fixed-term employees certain benefits (eg loans, clothing allowances, etc) on a pro-rata basis. Sometimes, the cost to you of offering certain benefits to a fixed-term employee may be disproportionate to the benefit the employee would receive. This may objectively justify different treatment.

    An example of this may be where a fixed-term employee is on a contract of three months and a comparator has a company car. You may decide not to offer the car if the cost of doing so is high and the need of the business for your employee to travel can be met in some other way.

    Less favourable treatment in relation to particular contractual terms is justified where the fixed-term employee's overall package of terms and conditions is no less favourable than the comparable permanent employee's overall package.

    How do employers objectively justify different conditions?

    You can argue that there is objective justification for treating the fixed-term employee differently.

    Alternatively, you may prove that the value of the fixed-term employee's overall terms and conditions at least equal the value of those of the comparable permanent employee.

    You will need to consider whether less favourable treatment is objectively justified on a case-by-case basis, either comparing term-by-term or comparing a package of terms and conditions.

    Developed with
    The Department for the Economy
    Labour Relations Agency
    Help
    LRA Workplace Information Service
    Actions
    Fixed-term contracts | LRA guidance
    Fixed-term workers | nidirect
    Sample contract of employment (DOC, 31K)
    Also on this site
    The written statement of employment
    Contract types and employer responsibilities
    The employment contract
    Prevent discrimination and value diversity
    Content category
    Employment and skills

    Source URL

    /content/fixed-term-employment-contracts-and-less-favourable-treatment

    Links

  • Fixed-term employment benefits

    Employment benefits that can be offered to fixed-term employees.

    Some employment benefits such as season ticket loans, health insurance or staff discounts can be offered on an annual basis or over a specified period. Where a fixed-term employee is not expected to work for this period, you might offer it in proportion to the contract duration ('pro-rata').

    For example, if the contract is for six months, the employee should receive half of an annual benefit. If the contract is for four months, they should receive one-third.

    If this is not possible because the cost to you would outweigh the benefit to the employee, you can claim objective justification for not offering the benefit.

    You need to consider whether less favourable treatment is objectively justified on a case-by-case basis. See fixed-term contracts and 'less favourable treatment'.

    Access to occupational pension schemes

    You must offer fixed-term employees access to occupational pension schemes on the same basis as permanent staff unless different treatment is objectively justified.

    For example, if a pension scheme has been closed to new permanent employees, new fixed-term employees need not be offered access, even if their permanent comparator has access. It is important that the point at which employees have joined a company in order to have been offered access to the scheme is the same for fixed-term as for permanent employees unless a difference is objectively justified.

    You do not need to offer special alternative benefits (eg contributions to a private pension scheme) to fixed-term employees who decide not to join a pension scheme unless this option is offered to comparable permanent employees.

    In certain situations, it may not be necessary to offer all fixed-term employees access to occupational pension schemes. For example, where an employee is on a fixed-term contract that is shorter than the vesting period for a pension scheme, or you offer the employee a salary increase equivalent to employer pension contributions paid to permanent staff, you may be able to justify excluding them from the scheme. See know your legal obligations on pensions.

    In addition, the Pensions (No.2) Act (Northern Ireland) 2008 introduced obligations on employers to provide access to and contribute towards, a workplace pension scheme for eligible employees.

    Every employer must enrol workers into a workplace pension if they meet certain criteria. See automatic enrolment into a workplace pension.

    Developed with
    Department for the Economy
    Labour Relations Agency
    Help
    LRA Workplace Information Service
    Actions
    Fixed-term contracts | LRA guidance
    Fixed-term workers | nidirect
    Sample contract of employment (DOC, 31K)
    Also on this site
    Implement staff incentive schemes
    Know your legal obligations on pensions
    Choose the right pension scheme
    Running a pension scheme
    Content category
    Employment and skills

    Source URL

    /content/fixed-term-employment-benefits

    Links

  • Redundancy rights of fixed-term employees

    Employer obligations to grant fixed-term employees their legal redundancy rights.

    Fixed-term employees have a right to statutory redundancy pay if they have been continuously employed for two years or more. Redundancy is defined in statute and the Labour Relations Agency (LRA) can provide you with information and advice on redundancy.

    When a fixed-term contract terminates and is not renewed, the employee is dismissed. The reason for this dismissal will not always be redundancy - this will depend on whether you are laying off employees of the type that the fixed-term employee is, or whether there is some other reason for not renewing the contract (for example, the fixed-term employee was covering for an absent member of permanent staff).

    Fixed-term employees cannot be excluded from the statutory redundancy payments scheme. However, they can be excluded from contractual schemes if this is objectively justified.

    Fixed-term employees should receive the same level of redundancy payments as permanent employees unless different treatment is objectively justified.

    You also need to consider whether fixed-term employees are being treated fairly in relation to other elements of redundancy packages, eg have the same access to specialist job search services as comparable permanent employees. Different treatment may be objectively justified and it is more likely to be so if the fixed-term employee did not expect their employment to last longer than the term of their first contract.

    Selection for redundancy

    Fixed-term employees cannot be selected for redundancy simply because of their employment status. Where fixed-term employees have been brought in to complete a particular task or as cover over a peak period, you can objectively justify selecting them for redundancy at the end of their contracts.

    Length of service (Last In First Out) should never be used as sole/main criteria in a redundancy situation as it may indirectly discriminate on the grounds of age (and potentially religion, where an employer has been taking positive action to address an underrepresentation from one community in their workforce). It can be used in conjunction with other criteria or perhaps applied in tie-break situations. See redundancy selection: non compulsory and redundancy selection: compulsory.

    Developed with
    The Department for the Economy
    Labour Relations Agency
    Help
    LRA Workplace Information Service
    Actions
    Handling redundancy | LRA guidance
    Fixed-term contracts | LRA guidance
    Fixed-term workers | nidirect
    Also on this site
    Redundancy: the options
    Redundancy letters, forms and templates
    The employment contract
    Continuous employment and employee rights
    Content category
    Employment and skills

    Source URL

    /content/redundancy-rights-fixed-term-employees

    Links

  • Fixed-term employment contracts and statutory employment rights

    Handle fixed-term redundancies legally when tasks or events are completed.

    If an employment contract terminates when a task is completed or an event occurs or does not occur, this is legally classified as dismissal.

    This gives fixed-term employees the same statutory rights as permanent employees or others on different fixed-term contracts, including the right:

    • not to be unfairly dismissed (after one year's continuous employment)
    • to a written statement of reasons for dismissal (after one year)
    • to statutory redundancy payments (after two years)
    Developed with
    The Department for the Economy
    Labour Relations Agency
    Help
    LRA Workplace Information Service
    Actions
    Dismissal | LRA guidance
    Fixed-term contracts | LRA guidance
    Fixed-term workers | nidirect
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    Continuous employment and employee rights
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  • Limiting the use of successive fixed-term employment contracts

    When renewed fixed-term employment contracts become permanent.

    If a fixed-term employee has their employment contract renewed or if they are re-engaged on a new fixed-term employment contract when they already have a period of four or more years of continuous employment, the renewal or new contract takes effect as a permanent contract (unless employment on a fixed-term contract was objectively justified or the period of four years has been lengthened under a collective or workplace agreement).

    If however a fixed-term employee has had their contract renewed at least once before the four-year period has elapsed, the employee's contract will become permanent after they have completed a total of four years' service. The only exceptions are when employment on a fixed-term contract can be objectively justified, or if the period of four years has been lengthened under a collective or workplace agreement.

    Continuous employment usually means employment without a break, although breaks for strike action and time spent out of work appealing against unfair dismissal (if the employee is subsequently reinstated) will not break continuity. The interval between contracts that result in continuous service being broken is determined by case law and statute and varies according to the circumstances.

    Renewing or extending fixed-term employment contracts

    If an employee has a fixed-term contract renewed before or extended beyond the four-year statutory limit (or beyond the limit agreed in any applicable collective or workplace agreement), the contract will be regarded as one of indefinite duration.

    An employee whose employment contract is renewed as a fixed-term contract, or re-engaged under a fixed-term contract, after the four-year period has the right to ask you in writing for a written statement of employment to confirm that they are now a permanent employee. You must produce the written statement of employment within 21 days and if you maintain that the employee is still fixed-term, you must explain the reasons why. The statement may be used at an industrial tribunal hearing if your employee decides to make a claim. See the written statement.

    Once the employee's contract is regarded as permanent, statutory minimum notice periods apply unless longer periods are contractually agreed.

    The limitation on successive fixed-term employment contracts will apply only where the employee has been continuously employed for the whole period. An employee may be continuously employed even where there is a gap between successive contracts. See continuous employment and employee rights.

    Fixed-term contract renewal may be justified on objective grounds if it is necessary and appropriate to achieve a legitimate objective, for example, a genuine business objective.

    Collective and workplace agreements

    Such agreements provide an alternative scheme for preventing abuses of fixed-term employment contracts and can be made to vary the limit on the duration of successive fixed-term contracts upwards or downwards, or to limit the use of successive fixed-term contracts by applying one or more of the following:

    • a limit on the total duration of successive fixed-term employment contracts
    • a limit on the number of successive fixed-term employment contracts
    • a list of permissible objective reasons justifying renewals of fixed-term employment contracts

    You and your employees may agree on reasons for renewing fixed-term contracts, including the specific needs of particular professions, for example, professional sport and theatre. It is important that these reasons do not permit the abuse of successive fixed-term contracts.

    A collective agreement is made between an employer or association/group of employers and trade union representatives. A workforce agreement is made between representatives of a workforce and an employer.

    Workforce agreements can apply only to groups of employees whose terms and conditions of employment are not covered by a collective agreement. Where a union is recognised to negotiate terms and conditions of employment any variations must be made through a collective agreement.

    See work effectively with trade unions.

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  • Informing fixed-term employees about permanent vacancies

    Fulfil your legal obligations to fixed-term employees when permanent positions arise.

    You must inform fixed-term employees of permanent vacancies in your organisation, and give them the same opportunity as others to apply for such roles.

    You should inform fixed-term and permanent employees of such vacancies at the same time and in the same way. Displaying a vacancy notice where all employees can see it or emailing the vacancy to all staff members will usually enable you to do this effectively.

    Industrial Tribunals

    Finally, under the regulations, a fixed-term employee may present a claim to an Industrial Tribunal alleging that they have not been informed of available vacancies or that they have suffered a detriment, or less favourable treatment. If you receive such a complaint you can contact the Labour Relations Agency (LRA). Its conciliation service applies to such claims. See details of the LRA's dispute resolution services.

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Fixed-term employment contracts and 'less favourable treatment'

In this guide:

  • Rights of fixed-term employees

    How to fulfil your legal obligations by granting fixed-term employees the same rights as permanent staff.

    Fixed-term employees have the right not to be treated less favourably than comparable permanent employees because they are on a fixed-term contract.

    This means you must treat fixed-term employees the same as comparable permanent employees unless there are 'objectively justifiable' circumstances for not doing so (ie there is a genuine, necessary, and appropriate business reason).

    Therefore they must receive the same or equivalent (pro-rata) pay and conditions, benefits, pension rights, and opportunity to apply for permanent positions within the business.

    When fixed-term could become permanent contracts

    Under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland), which came into operation on 1 October 2002, employees who have been on a fixed-term contract for four years or longer will usually be legally classed as permanent if their contract is renewed or if they are re-engaged on a new fixed-term contract. The Fixed-term Employees Regulations apply only to 'employees', not to the wider category of 'workers'.

    Exemptions to the rule

    The only exemptions to the rule above are when employment on a further fixed-term contract is objectively justified to achieve a legitimate business aim or when the period of four years has been lengthened under a collective or workplace agreement.

    You also need to make the same tax arrangements for fixed-term employees as for permanent staff.

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  • Fixed-term employment contracts and the 'equal treatment' principle

    Comparing the fixed-term employee with a comparable permanent employee.

    Fixed-term employees have the right not to be treated less favourably than comparable permanent employees because of their employment status unless the different treatment can be objectively justified.

    Comparing employment conditions

    To assess whether they are receiving equal treatment, a fixed-term employee can compare their employment conditions to that of a comparable permanent employee. This means someone working for you on an indefinite or an indeterminate employment contract and in the same place, doing the same or similar work. Skills and qualifications are taken into account where relevant to the job.

    Where a fixed-term employee does the same work as several permanent employees whose contractual terms are different, the fixed-term employee can select someone to compare themselves to.

    The chances of a claim for equal treatment being successful depend on the employee selecting a similar comparator and whether there are objectively justifiable reasons for their being treated differently.

    If no comparable permanent employee works in the same place, a fixed-term employee can choose someone working for you at another premises, but not someone working for a different employer.

    An employee will not be a comparable permanent employee if his/her employment has ceased.

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  • Fixed-term employment contracts and 'less favourable treatment'

    How to avoid treating fixed-term employees less favourably than their permanent equivalents.

    A fixed-term employee has the right not to be treated less favourably as regards the terms of his or her contract. A term-by-term approach is required when considering less favourable treatment in this context.

    Less favourable treatment happens when a fixed-term employee does not receive conditions or benefits granted to a comparable permanent employee - or receives or is offered a benefit on less favourable terms.

    Examples of less favourable treatment would include not being given a bonus or receiving fewer paid holidays than comparable permanent employees.

    If you give training to permanent employees, you must not deny fixed-term employees access to it unless it can be objectively justified. In addition, permanent staff must not enjoy preferential treatment for promotion or redundancy, unless objectively justifiable.

    The period of service qualifications relating to particular conditions of employment must be the same for fixed-term employees as for permanent employees except where different length of service qualifications is justified on objective grounds.

    Written statement of employment

    If a fixed-term employee feels less favourably treated because of their employment status or believes their rights have been infringed, they can request a written statement of employment from you detailing the reasons. You must produce this within 21 days of the request. This is your opportunity to clarify why a fixed-term employee receives particular treatment. The intention is not to allow fixed-term employees to find out what their colleagues are receiving.

    If you do not believe less favourable treatment has been given, or you have objective justification for it, the statement should say so. If a package approach is being used, the statement should say that this is why different treatment is occurring with respect to one or more benefits. The statement might be used at an industrial tribunal hearing concerning a complaint under the regulations.

    Although a failure to give a written statement of employment has no direct legal effect in itself, the statement is admissible in any proceedings under the regulations. A failure to provide one allows a tribunal to draw any inference it considers just and equitable (including an inference that you are in breach of the regulations) if it appears that the employer deliberately and without reasonable excuse omitted to provide a statement, or that the written statement is evasive or equivocal. A carefully drafted written statement of employment can avoid such a possibility and should be provided.

    What is objective justification?

    Less favourable treatment will be justified on objective grounds if you can show that it is necessary and appropriate to achieve a legitimate and genuine business objective.

    Objective justification may be a matter of degree. You should consider offering fixed-term employees certain benefits (eg loans, clothing allowances, etc) on a pro-rata basis. Sometimes, the cost to you of offering certain benefits to a fixed-term employee may be disproportionate to the benefit the employee would receive. This may objectively justify different treatment.

    An example of this may be where a fixed-term employee is on a contract of three months and a comparator has a company car. You may decide not to offer the car if the cost of doing so is high and the need of the business for your employee to travel can be met in some other way.

    Less favourable treatment in relation to particular contractual terms is justified where the fixed-term employee's overall package of terms and conditions is no less favourable than the comparable permanent employee's overall package.

    How do employers objectively justify different conditions?

    You can argue that there is objective justification for treating the fixed-term employee differently.

    Alternatively, you may prove that the value of the fixed-term employee's overall terms and conditions at least equal the value of those of the comparable permanent employee.

    You will need to consider whether less favourable treatment is objectively justified on a case-by-case basis, either comparing term-by-term or comparing a package of terms and conditions.

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  • Fixed-term employment benefits

    Employment benefits that can be offered to fixed-term employees.

    Some employment benefits such as season ticket loans, health insurance or staff discounts can be offered on an annual basis or over a specified period. Where a fixed-term employee is not expected to work for this period, you might offer it in proportion to the contract duration ('pro-rata').

    For example, if the contract is for six months, the employee should receive half of an annual benefit. If the contract is for four months, they should receive one-third.

    If this is not possible because the cost to you would outweigh the benefit to the employee, you can claim objective justification for not offering the benefit.

    You need to consider whether less favourable treatment is objectively justified on a case-by-case basis. See fixed-term contracts and 'less favourable treatment'.

    Access to occupational pension schemes

    You must offer fixed-term employees access to occupational pension schemes on the same basis as permanent staff unless different treatment is objectively justified.

    For example, if a pension scheme has been closed to new permanent employees, new fixed-term employees need not be offered access, even if their permanent comparator has access. It is important that the point at which employees have joined a company in order to have been offered access to the scheme is the same for fixed-term as for permanent employees unless a difference is objectively justified.

    You do not need to offer special alternative benefits (eg contributions to a private pension scheme) to fixed-term employees who decide not to join a pension scheme unless this option is offered to comparable permanent employees.

    In certain situations, it may not be necessary to offer all fixed-term employees access to occupational pension schemes. For example, where an employee is on a fixed-term contract that is shorter than the vesting period for a pension scheme, or you offer the employee a salary increase equivalent to employer pension contributions paid to permanent staff, you may be able to justify excluding them from the scheme. See know your legal obligations on pensions.

    In addition, the Pensions (No.2) Act (Northern Ireland) 2008 introduced obligations on employers to provide access to and contribute towards, a workplace pension scheme for eligible employees.

    Every employer must enrol workers into a workplace pension if they meet certain criteria. See automatic enrolment into a workplace pension.

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  • Redundancy rights of fixed-term employees

    Employer obligations to grant fixed-term employees their legal redundancy rights.

    Fixed-term employees have a right to statutory redundancy pay if they have been continuously employed for two years or more. Redundancy is defined in statute and the Labour Relations Agency (LRA) can provide you with information and advice on redundancy.

    When a fixed-term contract terminates and is not renewed, the employee is dismissed. The reason for this dismissal will not always be redundancy - this will depend on whether you are laying off employees of the type that the fixed-term employee is, or whether there is some other reason for not renewing the contract (for example, the fixed-term employee was covering for an absent member of permanent staff).

    Fixed-term employees cannot be excluded from the statutory redundancy payments scheme. However, they can be excluded from contractual schemes if this is objectively justified.

    Fixed-term employees should receive the same level of redundancy payments as permanent employees unless different treatment is objectively justified.

    You also need to consider whether fixed-term employees are being treated fairly in relation to other elements of redundancy packages, eg have the same access to specialist job search services as comparable permanent employees. Different treatment may be objectively justified and it is more likely to be so if the fixed-term employee did not expect their employment to last longer than the term of their first contract.

    Selection for redundancy

    Fixed-term employees cannot be selected for redundancy simply because of their employment status. Where fixed-term employees have been brought in to complete a particular task or as cover over a peak period, you can objectively justify selecting them for redundancy at the end of their contracts.

    Length of service (Last In First Out) should never be used as sole/main criteria in a redundancy situation as it may indirectly discriminate on the grounds of age (and potentially religion, where an employer has been taking positive action to address an underrepresentation from one community in their workforce). It can be used in conjunction with other criteria or perhaps applied in tie-break situations. See redundancy selection: non compulsory and redundancy selection: compulsory.

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  • Fixed-term employment contracts and statutory employment rights

    Handle fixed-term redundancies legally when tasks or events are completed.

    If an employment contract terminates when a task is completed or an event occurs or does not occur, this is legally classified as dismissal.

    This gives fixed-term employees the same statutory rights as permanent employees or others on different fixed-term contracts, including the right:

    • not to be unfairly dismissed (after one year's continuous employment)
    • to a written statement of reasons for dismissal (after one year)
    • to statutory redundancy payments (after two years)
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  • Limiting the use of successive fixed-term employment contracts

    When renewed fixed-term employment contracts become permanent.

    If a fixed-term employee has their employment contract renewed or if they are re-engaged on a new fixed-term employment contract when they already have a period of four or more years of continuous employment, the renewal or new contract takes effect as a permanent contract (unless employment on a fixed-term contract was objectively justified or the period of four years has been lengthened under a collective or workplace agreement).

    If however a fixed-term employee has had their contract renewed at least once before the four-year period has elapsed, the employee's contract will become permanent after they have completed a total of four years' service. The only exceptions are when employment on a fixed-term contract can be objectively justified, or if the period of four years has been lengthened under a collective or workplace agreement.

    Continuous employment usually means employment without a break, although breaks for strike action and time spent out of work appealing against unfair dismissal (if the employee is subsequently reinstated) will not break continuity. The interval between contracts that result in continuous service being broken is determined by case law and statute and varies according to the circumstances.

    Renewing or extending fixed-term employment contracts

    If an employee has a fixed-term contract renewed before or extended beyond the four-year statutory limit (or beyond the limit agreed in any applicable collective or workplace agreement), the contract will be regarded as one of indefinite duration.

    An employee whose employment contract is renewed as a fixed-term contract, or re-engaged under a fixed-term contract, after the four-year period has the right to ask you in writing for a written statement of employment to confirm that they are now a permanent employee. You must produce the written statement of employment within 21 days and if you maintain that the employee is still fixed-term, you must explain the reasons why. The statement may be used at an industrial tribunal hearing if your employee decides to make a claim. See the written statement.

    Once the employee's contract is regarded as permanent, statutory minimum notice periods apply unless longer periods are contractually agreed.

    The limitation on successive fixed-term employment contracts will apply only where the employee has been continuously employed for the whole period. An employee may be continuously employed even where there is a gap between successive contracts. See continuous employment and employee rights.

    Fixed-term contract renewal may be justified on objective grounds if it is necessary and appropriate to achieve a legitimate objective, for example, a genuine business objective.

    Collective and workplace agreements

    Such agreements provide an alternative scheme for preventing abuses of fixed-term employment contracts and can be made to vary the limit on the duration of successive fixed-term contracts upwards or downwards, or to limit the use of successive fixed-term contracts by applying one or more of the following:

    • a limit on the total duration of successive fixed-term employment contracts
    • a limit on the number of successive fixed-term employment contracts
    • a list of permissible objective reasons justifying renewals of fixed-term employment contracts

    You and your employees may agree on reasons for renewing fixed-term contracts, including the specific needs of particular professions, for example, professional sport and theatre. It is important that these reasons do not permit the abuse of successive fixed-term contracts.

    A collective agreement is made between an employer or association/group of employers and trade union representatives. A workforce agreement is made between representatives of a workforce and an employer.

    Workforce agreements can apply only to groups of employees whose terms and conditions of employment are not covered by a collective agreement. Where a union is recognised to negotiate terms and conditions of employment any variations must be made through a collective agreement.

    See work effectively with trade unions.

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  • Informing fixed-term employees about permanent vacancies

    Fulfil your legal obligations to fixed-term employees when permanent positions arise.

    You must inform fixed-term employees of permanent vacancies in your organisation, and give them the same opportunity as others to apply for such roles.

    You should inform fixed-term and permanent employees of such vacancies at the same time and in the same way. Displaying a vacancy notice where all employees can see it or emailing the vacancy to all staff members will usually enable you to do this effectively.

    Industrial Tribunals

    Finally, under the regulations, a fixed-term employee may present a claim to an Industrial Tribunal alleging that they have not been informed of available vacancies or that they have suffered a detriment, or less favourable treatment. If you receive such a complaint you can contact the Labour Relations Agency (LRA). Its conciliation service applies to such claims. See details of the LRA's dispute resolution services.

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