When a business is recruiting for a new role the main question we are asked is, do I have to advertise the role before appointing someone?
The simple answer is no.
Despite what many people think, there actually is no legal requirement for vacancies to be advertised, either internally or externally. This applies both to newly created positions and existing ones. The recruitment process does not even have to be competitive, or in fact even have an interview process.
Therefore, if you have a vacancy and you already have the perfect candidate in mind, you can proceed to appoint them without the need to go through a lengthy advertising and recruitment process.
However, there are potential risks in appointing someone without advertising the role or completing a recruitment process.
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 someone believes they have been discriminated against by the decision not to consider them. It is unlawful to discriminate against employees or prospective employees 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
sexual orientation
Before taking the decision to just appoint somebody, always consider whether there is a possibility that another employee may feel they have been discriminated against by not being given the opportunity to even apply.
It is obviously difficult to presume whether an employee will consider that they have been discriminated against, when someone else has been appointed to a role. A method to minimise the risk of a claim, would be to have a job description and job criteria in place. This way, you could demonstrate that other candidates would not have been suitable to the role, or the person appointed is the perfect candidate.
If a role is created with a specific person in mind, but they are working on a visa, then there may be a requirement that the role must be advertised before the candidate can be appointed. Always check the guidance for the visa the person is on, to be safe.
To find out how we can help or to discuss the matter further, call us on 01935 411191 or email enquiries@rbhr.co.uk. One of our trained HR consultants will be able to answer your queries and recommend some solutions.