Do Companies Have to Advertise Jobs? SME Recruitment Secrets to Avoid Tribunal Traps

Job adverts have long been the usual method of recruiting candidates for job vacancies, but external recruitment advertising can be a bit of a costly hassle. Alternatively, you may have an idea of the person you want to recruit from within your organisation, which begs the question…do companies have to advertise jobs at all?

In this article, we examine what, if any, legal obligations there are when it comes to advertising job vacancies, as well as some of the common pitfalls to bear in mind when recruiting.

Do jobs have to be advertised as a legal requirement?

The short answer to the question ‘Do jobs have to be advertised’ is ‘no. You will not be acting unlawfully if you decide not to advertise a job vacancy. This is the case for both external and internal job adverts.

However, if there are any collective agreements for advertising job vacancies or rules regarding how positions are to be advertised within your recruitment policy, these will need to be adhered to.

Can a failure to advertise a job lead to tribunal claims?

Potentially yes.

If, for example, the company has placed staff at risk of redundancy and then externally recruits into a vacant role without notifying those at risk of redundancy, this may affect the overall fairness of any subsequent redundancy dismissal, especially if the role is one that the employee at risk of redundancy is suitable for or could undertake a reasonable amount of training to carry out.

In a redundancy situation affecting someone on maternity leave, they have enhanced rights and protections. This includes the right to be offered any suitable alternative role. If an employer failed to do this and instead recruited someone else via advertising the vacancy externally, with the person on maternity leave subsequently being made redundant, this could result in an automatic unfair dismissal and a sex discrimination claim.

Where someone is on a fixed-term contract, the employer has a duty to make them aware of any potential vacancies that arise in the company. This doesn’t necessarily mean you have to advertise, but the fixed-term employee should be made aware of any vacant roles.

Those on maternity, paternity, shared parental, or adoption leave should be informed of vacant positions within the company unless they have expressly stated they do not wish to be informed of any vacancies.

There may also be direct or indirect discrimination claims lying in wait following a failure to advertise a position. For example, if a department is predominantly female and a male candidate is promoted via an informal recruitment process, this may be indirectly discriminatory.

Is it illegal to not advertise a job internally?

There’s no legal obligation to post job advertisements internally; however, if you are advertising a role externally, it’s best practice to also advertise the role internally. Exceptions to advertising a job internally will apply where the role is highly specialised; for example, specific qualifications are required that existing staff do not possess.

Failing to advertise a job internally can also cause disputes amongst staff. For example, where a managerial position becomes vacant and someone is simply ‘slotted into the role, this can cause several issues:

It can signify a lack of commitment to career progression by preventing other staff from applying to internal job advertisements and developing their skills. A lack of career progression is a very common reason employees cite for leaving their employment.

1. It can signify a lack of commitment to career progression by preventing other staff from applying and developing their skills. A lack of career progression is a very common reason employees cite for leaving their employment.
2. It leads to allegations of favouritism. If someone is given a role without having to apply, unless there are exceptional circumstances, this will be perceived as unfair and may lead to disgruntlement. If this is a role with managerial responsibility, the newly appointed individual could have an uphill battle establishing credibility in the role.
3. It could lead to allegations of discrimination (as stated above).

The benefits of internal recruitment are:

• Cost: external recruitment can be expensive.
• Time and convenience: you know your staff, and they know you and your business; therefore, roles can be recruited into quicker and perhaps with a less formal approach. They are also more likely to be familiar with your existing structure and systems, so training needs may not be as extensive.
• Reward, recognition, and staff retention: as stated above, if staff do not feel there is scope for career progression, they are more likely to leave. By maximising the skill sets and talent from within, you are investing in your workforce and are more likely to be able to retain valued staff.

What are the benefits of external job advertisements?

While it’s important not to overlook your existing workforce and inadvertently fall into a tribunal trap by failing to advertise internally, there are advantages to recruitment via external job vacancy advertisement:

1. Broadening your talent pool: Your current staff may be good, but there could be an external candidate who is better and who will bring a fresh perspective to the role. If you don’t look for them via external recruitment advertising, you’ll never find them!
2. Diversity: there is a risk of discrimination by not posting job vacancy advertisements externally if, for example, your workforce is predominantly made up of one particular group, e.g., mainly younger workers. If you target your recruitment advertising within your organisation or only to a limited external audience, such as online only or only using specific websites, you are not only restricting your talent pool but could also be indirectly discriminating against other age groups, genders, ethnicities, and so on.
3. Greater brand exposure: recruitment via external job advertisements, especially across multiple platforms, can bump up costs, but it can also serve a dual purpose by putting your company name out there!

If someone is covering a role temporarily and the original role becomes vacant, should the role be advertised?

It’s best practice to at least advertise the role internally to avoid disputes and potential claims.

For example, you could notify everyone that the permanent role has now become vacant and invite expressions of interest in the position. If there are none, then the person currently filling the role could simply be offered a permanent contract.

And Finally…

For more information on how to avoid legal pitfalls when advertising a job vacancy, please see our previous article: An Employers Guide to Job Adverts. And remember, Avensure can advise you on all aspects of recruitment, so don’t hesitate to contact us.

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