Do I legally need to advertise a vacancy?
If your business has a written recruitment policy in place, you should follow the rules and procedures set out under this policy and apply these in the same way for everyone. The written policy might include whether you must advertise a job, where to 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 nine protected characteristics as set out under the Act. 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.
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 if someone with a protected characteristic feels they have been overlooked as a direct result of having that particular protected characteristic.
By advertising a job both internally and externally, the business is less likely to inadvertently discriminate 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.
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