Is there a legal requirement to advertise every job vacancy?

This article was originally published by Pitmans LLP in 2015.

There is no general duty for an employer to advertise job vacancies. However there is an obligation for employers not to discriminate against employees or potential employees. Also, if an employee believes a job has not been fairly advertised, an employer could also receive a grievance from the employee.

The arrangements for advertising jobs or the decision not to advertise a job must not be discriminatory. If the workforce is made up of people with a particular protected characteristic, for example sex, race, age, recruiting internally or on the basis of a recommendation will not help to diversify the workforce and could constitute discrimination.

All forms of job advertisement, including e-mails, direct mail, signs in shop windows and on company notice boards, as well as advertising to the general public in newspapers, on the radio, TV and internet should not discriminate against anyone on the basis of any of the protected grounds unless there is objective evidence that the discrimination is lawful.

There is no comprehensive list of what constitutes discrimination. The test is whether an ‘ordinary, reasonable person with no special knowledge’ would think the advertisement discriminatory.

Employers must be careful that their advertisements are also not indirectly discriminatory. Indirect Discrimination can occur when an employer has a condition in its advertisement that applies to everyone but particularly disadvantages people who share a protected characteristic, eg. race, gender, age etc.

Solutions

It is important that employers have systems in place to avoid job advertisements falling foul of discrimination legislation. The following are some considerations that employers should bear in mind when preparing job advertisements:

• think very carefully about the requirements of the role being advertised;
• draw up a detailed job description and person specification, focussing on what skills the employer wants the candidates to demonstrate;
• keep a paper trail of your reasoning;
• have clear requirements and person specifications and apply them methodically to the applications received.