Is it Legal to Fill a New Role Without Advertising it?

When it comes to recruiting an individual to fill a new role, there is one key question that employers need to consider; are they legally required to advertise the role before appointing someone to complete it? Here's everything you need to know.

Policies and procedures

Firstly, if the employer has a policy or procedure in relation to recruitment, then this should be followed and applied to everybody fairly.

If, however, the employer does not have any written rules, policies or procedures relating to recruitment then the short answer is no, employers do not need to advertise a job role before appointing a candidate.

There is no legal requirement for vacancies to be advertised, either internally or externally. This applies both to newly created positions and to roles that previously existed but have now become vacant. A recruitment process does not have to be competitive, and additionally, there is no requirement for an interview process to be completed.

Discrimination & legal risks

As a result, if you have a vacancy to fill (either because it has arisen as a result of another employees departure, or because it has been created specifically and is a new role) but you already have the perfect candidate in mind, then you can proceed to appoint the candidate without the need to progress through lengthy advertising and a competitive recruitment process.

This will partly depend on the specific scenario, however, and legally, there are potential risks which arise when an employer proceeds to appoint an individual into a vacant position without advertising the role or completing a recruitment process.

For example, one key issue facing employers all over the United Kingdom is the issue of discrimination, and all employers have a duty not to discriminate against their employees, or any prospective employees. As a result of this, employers could be open to potential discrimination claims if individuals believe that they have been discriminated against by the employer taking the decision not to appoint them.

It is unlawful to discriminate against an employee or prospective employee on the basis of a “protected characteristic”. There are nine protected characteristics which are set out in the Equality Act 2010, and which are as follows:-

• age
• disability
• race
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• religion or belief
• sex; and
• sexual orientation

When taking the decision whether to simply appoint somebody into the role, or whether to advertise the role, the employer should consider whether there is a possibility that another employee will deem themselves as having been discriminated against by not being appointed into the role.

It is difficult to determine if an employee will consider that they have been discriminated against by their employer appointing someone else into the role.

Job descriptions & visas

One way to minimise the risks of a claim when filling a new role would be to draw up a job description and criteria, in any event. This way, an employer can demonstrate that another individual would not have been suited to the role, for example, or that the person appointed is perfectly suited to fill the position.

Another point to consider is the individual who will be filling the vacancy; if a vacancy is being created with a specific candidate in mind, but that candidate is working in the United Kingdom on a visa, then there may be a requirement for the role to be advertised before the candidate is appointed. Employers should review any guidance on this point to ensure that they are not breaching any rules and should also consult a solicitor if they are unsure.

Ultimately, whilst an employer does not legally have to advertise a role either internally or externally before filling it, it is recommended that they prepare a job description and criteria to rely on in the event that another individual complains of discrimination. If an employer is concerned about the risk of a claim, they should make contact with a solicitor to discuss their concerns and seek relevant advice and guidance.

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About the Author

Tina Chander is Head of Employment Law at Wright Hassall - a full service law firm which acts for both regional and national clients across a variety of sectors. Tina is a qualified barrister and solicitor with extensive experience in employment law matters for both individuals and businesses.