HM Insights

Worried a potential new recruit might not stick around? How employers can legitimately reduce the risk of new employees leaving

It's interesting to see headlines about people who have been employed in the oil and gas industry, and who have now found themselves out of work, facing difficulties in the job market.

Those difficulties are reported to be not merely those faced by the majority of unemployed persons, caused by a competitive environment and too many candidates for the vacancies that exist, but rather the reported reluctance on the part of employers to take on staff who they perceive will return to the oil and gas industry as and when there is a upturn in activity in the Aberdeen market.

Although the use of the word 'discrimination' in the headlines is with reference to the general meaning of the word and not necessarily as an employment lawyer would know it (namely with reference to the Equality Act 2010), the circumstances pose an interesting question for employers, namely, what can do you do to protect your investment in a new recruit?

Mitigating risk when recruiting new employees

On one view recruiting any new employee is always a challenge and carries risk, with no amount of pre-offer assessment and vetting able to confidently predict the success and retention of an employee. The investment that has to be made in a candidate is rarely overlooked or undervalued. Yet once the employee is identified, the employer can make an offer of employment and structure the service agreement, contract of employment or offer letter in a way that does provide protection to the employer and mitigates against difficulties if the employee chooses to leave.

For example, there's no prohibition on the length of notice that an employer and employee can agree, provided it reflects the statutory minimums. The length of notice can be an effective deterrent to an employee moving on quickly. Recent case law also suggests that if an employee doesn't serve their notice properly and tries to "walk", then the employer can get an interdict to stop them "walking", effectively putting them on garden leave without pay for the duration of notice not properly served. It is also not necessary for an employer and employee to have parity in the length of notice periods. Employers can even tie employees into a minimum period of time during which an employee cannot issue their notice.

In relation to training costs, it's always open to employers to agree that costs incurred can be repaid if an employee leaves in a certain period of time, but usually it is best to tread carefully and to operate repayment on a sliding scale, to give such provisions the best chance of being enforceable.

Separately it's always open to an employer to agree with an employee that they won't take various steps, post-employment, that could be damaging to the employer for a specified period of time, in the form of post-termination covenants.

A practical step to take can also be to pay salary/wages and allowances in sufficient arrears to provide a little protection against the prospect of employees leaving without giving appropriate notice; well worded contractual documentation may allow employers to legitimately offset those monies against the problems caused by people who leave without observing appropriate notice periods.

Of course, a stable and content workforce is key to any workplace performing well and retaining staff, but good contractual documentation can offer some further comfort and a platform to respond.

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If you would like to find out more about the issues raised in this article, please contact one of our employment team to discuss.