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FL Memo Ltd © 2007 |
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Employment Memo 2007 Newsletter Issue 2 |
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RECENT CASES |
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Pre-employment Recruitment and selection Spent convictions ¶613 If questions about past convictions are raised in an application form or at a job interview, applicants are not generally obliged to reveal spent convictions. Where an applicant answers such a question dishonestly, however (for example by failing to reveal when asked that he has been convicted of an offence and the offence is unspent), he may be committing a criminal deception. In this case, an applicant P applied for a civilian job with the police, stating “no” on her application form in answer to the question “have you ever been convicted of an offence?” Nine years previously, following a court hearing, she had been made subject to an order for a conditional discharge. Following her job application, which was treated by the police as a false representation, P was charged with the criminal offence of obtaining a pecuniary advantage by deception. The Court of Appeal held that, as a matter of definition, an order for a conditional discharge was not a conviction. P had never been convicted of an offence. Accordingly, she had not made a false representation and the case against her was dismissed. R v Patel [2007] ICR 571, CA Comment: The Court went on to say that those specified employers, such as the police, who are exempt from the Rehabilitation of Offenders Act 1974, should be able to ask a broadly-phrased question, such as “Have you ever been found guilty of a criminal offence?”
Continuity of employment General rules Casual employment and holiday leave ¶1019 In this case, an employee V was employed on a series of casual contracts. It was held that there was no umbrella or global contract because in the periods when V was not at work there were no mutual obligations which could keep the contract alive (¶38). Consequently V had to rely on the continuity of employment rules to obtain the necessary qualifying periods to bring his various claims, principally one for unfair dismissal. This he did as he had worked for his employer for at least one day every week from the start of his employment in February 2003 to the end of his employment in June 2006. As such, he came within the rules regarding continuity of employment (gaps between contracts of less than one week will not break continuity of employment (¶1014)). The tricky issue was that he had taken a two week holiday in 2005. Under the continuity of employment rules in such circumstances the gap would not break continuity if V could be said to have been absent in circumstances where by arrangement his employment was regarded as continuing. V’s employer accepted that V was entitled to statutory annual leave and had provided for holiday pay by rolling it up in V’s ordinary pay. Consequently, continuity had been preserved as V must be deemed to be ‘on the books’ for that period even though there was no contract of employment in existence. Vernon v Event Management Catering Ltd [2007] EAT case 0161/07 Comment Note that “rolled up” annual leave is now unlawful (¶4014). This was not an issue in this case so the illegality of the arrangements were not discussed. |
