This week’s legal questions and answers

Q I am an HR Manager, and approximately 40 per cent of our firm’s workers
are on fixed-term contracts. I understand the new regulations protecting
fixed-term workers will shortly come into force, and we are considering not
entering into any new fixed-term contracts. Presumably the new regulations will
not affect existing workers?

A The new regulations were initially due to come into force in July
of this year, but will now come in on 1 October 2002. They will broadly ensure
that workers on fixed-term contracts do not have any less favourable terms –
including pay and pension provisions – than comparable permanent employees.

This will therefore entitle them to the same benefits as your permanent
staff, unless there are objective reasons for the less favourable treatment.

The regulations also limit the use of successive fixed-term contracts up to
a combined period of four years.

Importantly, the new regulations will affect all employees already on
fixed-term contracts, and your existing workers will benefit from 1 October.
Any dismissal for reasons linked with the enforcement of these regulations,
will automatically be deemed unfair.

Q I deal with a lot of recruitment for a company which is part of a large
group. I tend to keep all job applications, whether they are on spec or for
specific positions, for anything up to a year. If I think it is appropriate, I
pass the CVs to other parts of the group, and I wondered whether I could be
criticised for doing this under the data protection legislation.

A The only section of the Information Commissioner’s code of practice
on employer/employee relations that has been issued so far, is the section
dealing with recruitment, which will help with the point you raise.

As a company, you should establish retention periods for recruitment records
that are based on ‘business needs’. Given that any claim arising out of the
recruitment process should be made within three months, a retention period of
up to six months is likely to be acceptable.

However, unsuccessful candidates should be told how long their details are
going to be kept, so that they have the opportunity to request that they be
removed. Passing on CVs throughout the company is likely to be a breach of the
data protection legislation unless the individual has been informed that this
may happen.

Q I have been asked to write a reference for a former employee. He
brought a sex discrimination claim against the company, and while I want to
write a fair reference, I am concerned that it may result in further hassle for
me. Would I be better off not writing a reference at all?

A If your reason for not giving him a reference is that he had
previously brought a discrimination claim against the company, he would be
entitled to bring a further claim for victimisation, even though he is no
longer an employee. It is important to follow your usual procedures on
references and not to treat him any differently.

David Green is head of the employment and pensions unit at Charles

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