Advertising a job vacancy is a fairly standard recruitment practice for employers looking for someone to fill a position in their business. This could be where a vacancy has arisen following the departure of an existing employee or because a new role has been created. However, the employer may already have a candidate in mind for a particular role. They may also be looking to reduce their costs or shorten the recruitment process by only advertising internally, or not advertising at all, instead using word of mouth or going with a personal recommendation.
The following article for employers and HR personnel examines the frequently asked question: Do you have to advertise a job? This includes best practice advice on minimising any risks involved, from avoiding allegations of unlawful discrimination to meeting the Home Office ‘genuine vacancy’ requirement when hiring migrant workers from outside the UK.
Is it a legal requirement for employers to advertise a vacancy?
If an organisation has a written recruitment policy in place, employers should follow the rules and procedures set out under this policy, and apply these fairly, ie; in the same way for everyone. For example, the written rules might include whether the employer has to advertise a job, where they should advertise a role and to whom, such as internal or external applicants.
However, employers are not legally required to advertise a job vacancy, either internally or externally. This applies both to roles that previously existed but have recently become vacant and to newly-created positions. A recruitment process does not have to be competitive. There is also no requirement for an interview process to be completed. That said, advertising a job is often advisable, as proceeding to appoint a person into a vacant position without first advertising the role or completing a recruitment process is not without risk.
Under the Equality Act 2010, the employer is under a duty not to discriminate against either an existing or prospective employee by reason of any one of the nine protected characteristics as set out under the Act. Failing to advertise a job could, in some circumstances, be classed as discriminatory conduct on the part of the employer for which a job applicant could bring a tribunal claim. The protected characteristics can include a job applicant’s:
- gender reassignment
- marriage or civil partnership
- pregnancy or maternity
- religion or belief
- sex, or
- sexual orientation.
This means that if the workforce is made up of people with a particular characteristic — for example, it is predominantly either male or female, or comprised of a particular racial group — sole use of informal recruitment methods such as word of mouth or recommendations can easily perpetuate the existing imbalance and restrict the choice of applicants.
As the failure to advertise a job — either externally or at all — will not help to diversify the workforce, this could be classed as indirectly discriminatory against any protected group that is under-represented in the workplace. As a result, any applicants who do not hear about a vacancy until it is too late to apply because candidates have been sought through an informal recruitment exercise, may be able to claim unlawful discrimination on the basis that the employer’s recruitment method was a discriminatory workplace arrangement.
In contrast, by widely advertising a job — both internally and to the general public — the employer is less likely to fall foul of the law on equality by inadvertently discriminating against potential job applicants falling within protected groups. The use of a job advertisement is also likely to attract a wider range of applicants who are suitable for the role, rather than restricting the candidate pool to those already working for or recommended to the employer.
Do employers have to advertise a vacancy externally?
By law, employers do not have to advertise a vacancy externally before appointing a candidate, although an employer that considers only internal candidates, or people already known or recommended to them, is limiting its pool of talent and may not recruit the strongest person for the role. In cases where the employer recruits a new employee without advertising a vacancy externally, this may also give rise to allegations of unlawful discrimination.
Essentially this means that any arrangements for advertising jobs, or the decision not to advertise a job, must not discriminate against other potential applicants on any one of the protected grounds as set out under the 2010 Act. For example, if the business is recruiting for a head of sales but the job is only advertised internally, the employer could be indirectly discriminating against women if the potential applicants in the business are all men.
To avoid any allegations of unlawful discrimination, and to widen its pool of talent, the employer may therefore wish to open up any job vacancy to external candidates. The employer may also want to ensure that job adverts to the general public reach a wide and diverse range of people, as the employer could also be discriminating if the only job advert they use is a targeted one. A targeted job advert is one that can only be seen by specific groups of people. This could include, for example, where an advert is only placed in a men’s magazine or one which is only made visible on social media to users falling within a certain age group.
By advertising through more than one channel, rather than limiting any advert to a single medium, the employer will not only minimise allegations of unlawful discrimination but avoid losing out on applicant’s who don’t use a particular medium. Multiple advertising media will undoubtedly add to the overall length and cost of recruitment, especially as this is likely to result in much higher volumes of applications than using limited or internal recruitment methods, but when weighed against the benefits this is often worth the investment.
Do employers have to advertise a vacancy internally?
Again, as a matter of law, employers do not have to advertise a job internally before appointing a candidate, although the same practical and legal risks can arise from any failure to notify existing employees of the existence of a new role, as with any failure to advertise externally.
Internal candidates can prove to be extremely attractive to employers looking to hire someone who knows and understands the business, with a proven track record. Some employers will choose only to advertise internally, as this can be quicker and more cost-effective than sifting through countless applications and training up someone new to the business. However, by advertising both internally and externally, employers will create the widest possible talent pool for any available job role, and keep the risk of discrimination to a minimum — provided that any job advert, of itself, does not put protected groups at any disadvantage.
How do employers ensure that job adverts avoid being discriminatory?
Job adverts can come in a number of different formats, depending on whether the employer is advertising internally, externally or both. Very often internal adverts will be placed on the company notice board or uploaded onto the staff intranet site, whilst adverts aimed at the general public can include anything from signs in shop windows or adverts in newspapers, to online adverts on job search websites or social media platforms.
Regardless of the nature of the advert, this must not directly discriminate against potential job applicants. This means the job advert should not expressly refer to a protected characteristic — including saying that the employer will not be able to cater for workers with a disability — nor must it imply that the employer will discriminate against anyone falling within a protected group. The only exception to this is where, for example, being of a particular sex or age is an occupational requirement having regard to the nature or context of the work in question.
Employers must also be careful that a job advert does not indirectly discriminate. Indirect discrimination can occur when an employer includes a condition in an advert that applies to everyone, but which in practice disadvantages people who share a particular protected characteristic. Even if unintentional, this can still be classed as unlawful.
There is no comprehensive list of what constitutes indirect discrimination when it comes to job adverts, although common examples include terms like ‘highly experienced’ or recent ‘graduate’, as these could indirectly discriminate against younger or older applicants, or phrases like ‘barmaid’ or ‘handyman’, that could indirectly discriminate against someone’s sex.
To make clear what the job requires and to help avoid unintended discrimination, employers should think carefully about the requirements of the job role being advertised, drawing up a detailed job description and person specification on which the advert should be based. For instance, rather than asking for applicants with ’10 years experience working in retail’, the advert should instead state that a specific level of competence or knowledge must be met.
The advert should essentially focus on what skills and knowledge the employer wants candidates to demonstrate. These requirements should then be assessed fairly and consistently throughout the recruitment process, from initial selection through to interview and final selection. The employer should also keep a record of their reasoning for these requirements and their use of recruitment methods.
Do employers have to advertise to comply with the resident labour market test?
UK sponsors seeking to recruit migrant workers via either the Skilled Worker or Intra-Company Transfer routes under the UK’s Immigration Rules must satisfy the Home Office, if required, that they can offer genuine employment that meets the relevant salary and skill level of the route in question. This is known as the ‘genuine vacancy’ test.
It is no longer necessary for employers to conduct a formal resident labour market test as they used to have to do under the previous Tier 2 (General) route. Under the previous rules, employers had to evidence that they had tested the resident labour market to ensure that the position they were looking to fill with an overseas worker could not be filled by someone settled in the UK. This requirement meant that, unless an exemption applied, employers had to place two job adverts for a period of at least 28 calendar days to ensure there were no suitable workers already living permanently in the UK.
However, even though the resident labour market test is no longer a mandatory requirement, the Home Office must still be satisfied that any vacancy is genuine. If it appears likely that the job does not exist, is not genuine or has been created mainly so the applicant can apply for entry clearance or permission to stay in the UK, points will not be awarded for sponsorship.
As the Home Office can ask for information on how and why an individual has been offered a particular role, employers are advised to advertise a job where this would have been required under the previous immigration rules. In this way, the employer can provide clear evidence of recruitment activity to demonstrate that the ‘genuine vacancy’ requirement has been met. The alternative here, where a job advert has not been placed, is for the employer to explain how they identified the worker, which is not impossible but may prove to be more problematic.
DavidsonMorris’ team of HR consultants and employment lawyers provide holistic guidance to support employers in reducing the risk of discrimination claims relating to recruitment and workforce management. For advice on a specific complaint, or for support with developing and implementing best practice policies and procedures within your organisation, contact us.
Advertising a job FAQs
Can you give someone a job without advertising it?
An employer can appoint someone into a vacant position without first advertising that role or completing a recruitment process, although failing to advertise a job could, in some circumstances, unlawfully discriminate against any person not appointed into that role.
Do you have to advertise externally for a job?
It’s open to an employer to advertise a job vacancy on an internal basis only, where this can be quicker and more cost-effective than sifting through countless applications following external advertising, and training up someone new to the business.
Is it illegal to hire without posting a job?
It’s not illegal to hire someone without posting a job, although this must not discriminate against other potential applicants on any one of the protected grounds as set out under the 2010 Act, such as age, race, religion or sex.
Last updated: 28 July 2021