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May 17, 2017

Ask the Expert – Appointing to a role without advertising

Question

We have created a new post in our structure and the CEO knows someone that she would like to appoint into the role. Is there an obligation on us to advertise the role, either internally or at all? We would like to save time and money by skipping the recruitment process.

Answer

The good news is that, in most cases, there is no specific requirement on an employer to advertise a role in a particular way, either internally or externally.

However, there are a number of factors to consider when making such a decision. The best place to start is with your internal policies. Do you have a procedure in place that states that you will offer roles internally before going out to external advert? If so, it is likely to be safer to follow that procedure to avoid complaints from employees, particularly if such a procedure is contractual.

You have also mentioned a new structure. If you have recently gone through a restructuring or organisational change process, you may have decided to declare certain posts redundant. In that event, if you appoint into this new role without at least considering the redundant employees for it, there is a higher risk of an unfair dismissal claim against you being successful.

Discrimination issues may also come into play. A recruitment process will generally be open to all, meaning candidates from all backgrounds have the chance to apply. However, when you appoint into a role without advertising, you run the risk of employees with a certain protected characteristic claiming that they were not offered an opportunity to apply because of that characteristic. Such claims could come from inside and outside your organisation.

An example of the above could be a man complaining of sex discrimination in the event that the female CEO appoints a female into the role, but similar claims could be made in relation to race, religion etc. Having no recruitment process could mean a lack of evidence to show that discrimination did not play a part in the appointment.

For that reason, if you do wish to proceed to appointing without advert, it may be safer to write a business case for the direct appointment. For example, there may be certain skills, qualifications and/or experience needed for the role that can be found only in the person the CEO has in mind.

If so, that could be used as a justification for not advertising, but an explanation of the specialist nature of the role, and why that person is considered the only person suitable for it, should form part of the business case.

If there isn’t such a reason for appointing the person in question, and it’s merely a friend of the CEO, you may wish to consider implementing some form of process to reduce the risk of complaints from employees or a discrimination claim.

It is also important to remember that direct appointments can usually be made only in relation to candidates from the UK, EEA and Switzerland. Appointing someone from outside Europe would normally have to be done under the Points Based System of immigration, which in most cases requires an employer to follow stringent advertising rules.

If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.

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Edinburgh
EH3 8HA