Where and how a vacancy is advertised will have a significant effect on the success of a recruitment exercise, and may also have legal repercussions. As a guiding principle, the more widely a vacancy is advertised, the more likely it is that indirect discrimination (indirect discrimination) will be avoided.
If a company's workforce is currently dominated by one or other sex or by a particular racial group, recruiting by word of mouth or internal advertising is likely to reinforce that dominance. This can therefore lead to unlawful indirect discrimination against the under-represented group, unless the use of that method can be objectively justified. One of the major advantages of these recruitment sources is that they save advertising costs. But cost considerations alone cannot justify a failure to externally advertise posts that are suitable for free placement with Jobcentres.
Notifying fixed-term employees
Under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, a company's fixed-term employees must be given the same opportunity as its permanent employees to apply for permanent vacancies in the company, unless the company can justify treating them differently. (The Regulations are explained in more detail elsewhere (fixed-term contracts).) Further, fixed-term employees have the right to be informed of all permanent vacancies, either by being given a reasonable opportunity of reading the job advertisement while at work (such as by displaying it on a notice board) or by being notified of the vacancy in some other way (such as by e-mail).
Companies should ensure that any external recruitment agency they use knows that suitably qualified candidates will be considered regardless of their sex, gender reassignment, marital or civil partner status, race, age, disability, religion, sexual orientation or trade union membership. Instructing an agency to discriminate on these grounds would be in breach of discrimination law. For example, it would be unlawful to ask an agency to send only female candidates for a receptionist post.
A job advertisement is not an offer of employment, but the contents of an advertisement may end up being referred to later if there is a dispute about the terms of the successful candidate's employment contract. For example, a statement in an advertisement that the job carries access to a bonus could be used as evidence that the bonus is a contractual entitlement rather than merely a discretionary benefit. Care should therefore be taken in ensuring that the details of the terms and conditions on offer are accurate.
It is unlawful for a company to place an advertisement that indicates, or might reasonably be understood as indicating, an intention to discriminate on the grounds of sex, age, gender reassignment, marital or civili partner status, disability or race. It is therefore advisable to draft any advertisement in a way that makes clear that no assumptions are being made about these aspects of the successful applicant.
If one sex or racial group is under-represented in a particular type of work in a company, then the law permits, but does not require, the company to encourage people of that sex or racial group to apply for a vacancy to do that work (positive action ). A company in this situation could therefore lawfully state in a job advertisement that it positively encourages applications from the under-represented group.
Since discrimination in favour of disabled people is lawful, a company is entitled, if it wishes, to include a statement in a job advertisement encouraging applications from disabled people. On the other hand, discrimination against disabled applicants is unlawful (disability discrimination).
In particular, recruiters should ensure that advertisements are not drafted in a way that indicates that the successful applicant will not be disabled, or that the company is unwilling to make reasonable adjustments to accommodate disabled applicants. It is therefore worth avoiding using closed statements such as 'Our premises are not wheelchair accessible' in advertisements.
It is unlawful to refuse somebody a job because:
- they are or are not a trade union member; or
- they are unwilling to join or leave a union; or
- they are unwilling to make payments in lieu of union subscriptions.
If an advertisement suggests that there is a union requirement of this kind, then the law assumes that any unsuccessful applicant who does not meet the requirement was refused the job for that reason. This will be so even if the company can produce evidence that the candidate was in fact rejected because he or she was not the best-qualified applicant for the post. It is therefore advisable not to mention union membership at all in a job advertisement.
If an employer has an arrangement or practice that it will offer employment only to individuals put forward or approved by a trade union, then the law states that an unsuccessful applicant who is not a union member was refused the job for that reason.
In order to meet the requirements of the data protection legislation, the Data Protection Code advises employers to ensure that individuals who respond to job advertisements know to whom they are providing their information and how it will be used. An advertisement should therefore not ask potential applicants to provide even their names and addresses to an unidentified answering machine. Where a recruitment agency rather than the employer places the advertisement, no personal data should be passed from the agency to the employer without the individual's knowledge.